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By: Thomas S. Tripodianos Published: July 2021

HERO ACT Legal Alert Follow up

In early May of this year we sent out a Legal Alert advising you of the passage of the New York Health and Essential Rights Act (HERO Act) into law. Section 1 of the Act requires the New York State commissioner of labor, in consultation with the New York State Department of Health, to create and publish a model airborne infectious disease exposure prevention standard for all worksites, by industry, and to establish minimum requirements for preventing exposure to airborne infectious diseases in the workplace. In establishing these minimum requirements, the labor commissioner is charged with developing protocols to address the following topics: (1) employee health screenings; (2) face coverings; (3) personal protective equipment (PPE) required by industry and at the employer's expense; (4) hand hygiene; (5) cleaning and disinfecting of shared work equipment and surfaces (e.g., hand tools); (6) social distancing protocols; (7) mandatory or precautionary isolation or quarantine orders; (8) engineering controls; (9) assignment of enforcement responsibility of the safety plan and federal, state, and local protocols to one or more supervisory employees; (10) compliance with employee notice requirements; and (11) verbal review of standards, policies and employee rights.

The Act requires the labor commissioner to publish these industry-specific airborne infectious disease exposure prevention standards in both English and Spanish in addition to other languages depending on predominant languages used in the industry.

On July 6, 2021, the Department of Labor, in consultation with the NYS Department of Health, released a new Airborne Infectious Disease Exposure Prevention Standard , a general Model Airborne Infectious Disease Exposure Prevention Plan, and various industry-specific model plans (including construction) for the prevention of airborne infectious disease.

The HERO Act requires employers to adopt and maintain an airborne infectious disease prevention plan to be implemented when an airborne infectious disease is designated by the New York State Commissioner of Health as a "highly contagious communicable disease that presents a serious risk of harm to the public health." This plan will not apply to any seasonal or endemic infectious agent or disease, such as the seasonal flu, that has not been designated by the Commissioner as a highly contagious communicable disease that presents a serious risk of harm to the public health.

The airborne infectious disease exposure prevention plans must go into effect when an airborne infectious disease is designated by the New York State Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health. Currently, while employers must adopt plans as required by the law, as of the date of this writing no designation has been made and plans are not required to be in effect.

Employers must adopt plans within 30 days of the release of these documents (Thursday, August 5, 2021), and communicate the plan to employees with 30 days after adoption (Saturday, September 4, 2021). Employers must also post the plan at the worksite and incorporate the plan into an employee handbook if the employer has a handbook. In addition, employers must make the plan available for review upon request by an employee, independent contractor, employee representative, collective bargaining representative, the labor commissioner, or the Commissioner of public health.

Section 2 of the Act dealing with the establishment of workplace safety committees applies to employers that employ at least ten employees or have an annual payroll of over $800,000 and a "workers' compensation experience modification rating of more than 1.2." and is effective on November 1, 2021. We expect more guidance from the Labor Department regarding these committees over the summer.

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