New York State Department of Labor (DOL) published the Airborne Infectious Disease Exposure Prevention Standard (the Standard) on July 6 pursuant to the New York Health and Essential Rights Act (HERO Act) as well as a template compliant safety plan. By August 5, 2021, employers must either adopt an applicable template plan or establish an alternative plan that meets the Standard’s minimum requirements. While employers must make available and communicate the existence and contents of their plan to employees by September 4, 2021, they do not need to actually implement the safety controls in the plan until the New York Department of Health declares an outbreak of an infectious disease, which has not happened yet.

The HERO Act

As noted in our previous LawFlash, the HERO Act was signed into law in May 2021. The HERO Act requires employers to adopt airborne infection disease exposure prevention plans. Pursuant to the HERO Act, the DOL was directed to create model standards which set the minimum requirements that all workplaces must follow to limit the risk of infectious disease exposure.

The Standard and Template Plans

On July 6, 2021 the DOL published its Airborne Infectious Disease Exposure Prevention Standard pursuant to the HERO Act as well as a template compliant safety plan. In addition to the general template plan, the DOL published template industry-specific plans for the following industries: agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing/industry, personal services, private education, private transportation, and retail. To date, there is no office-specific workplace template industry plan; however, employers should continue to monitor future guidance from the DOL.

Employers can choose to adopt the applicable policy template/plan provided by DOL or establish an alternative plan that meets or exceeds the Standard’s minimum requirements. The Standard’s minimum requirements are set forth in more detail below – however, in many respects the Standard defers to New York State Department of Health (DOH) and Centers for Disease Control and Prevention (CDC) guidance that may be in effect during a designated outbreak. Pursuant to these protocols, employers must do all of the following:

  • Health Screenings/Exclusion of Symptomatic Employees
    • An employer must perform health screenings for the disease at the beginning of a workday, and employers must (a) limit the exposure of other individuals to employees demonstrating any symptoms of the disease; and (b) follow DOH/CDC protocols regarding testing, isolation, and quarantine before allowing employees to return to the worksite.
  • Face Coverings and Personal Protective Equipment
    • An employer must provide employees with appropriate face coverings at no cost to employees, and require that employees wear appropriate face coverings when physical distancing cannot be maintained.
    • An employer must also provide and maintain additional protective equipment (as required or recommended by the DOH for employee protection), at no cost to employees. Additionally, employers must:
      • store, use, and maintain the protective equipment in a sanitary and reliable condition in order to be used at the worksite;
      • provide appropriate training and information to each employee required to use personal protective equipment; and
      • ensure that any employee-owned equipment being used at the worksite is being maintained in accordance with DOH protocols and is adequate and functional.
  • Physical Distancing
    • An employer must keep employees at least six feet apart from other individuals when possible.
  • Hand Hygiene Facilities
    • An employer must provide handwashing facilities with an adequate supply of tepid or warm potable water, soap, and single-use towels or air-drying machines to the extent possible/feasible, and otherwise provide hand sanitizing facilities/supplies. Any hand sanitizer must contain at least 60% alcohol or other composition determined to be appropriate by the DOH or CDC for the designated outbreak.
  • Cleaning and Disinfection
    • An employer must determine and implement an appropriate cleaning and disinfection plan appropriate for the particular workplace and disease outbreak, providing for the following:
      • Surfaces known or believed to be contaminated with potentially infectious materials must be cleaned and disinfected immediately or as soon as feasible, unless the area and surfaces can be isolated for a period of time prior to cleaning.
      • Surfaces contaminated with dust or other loose materials must be wiped clean prior to disinfection, and the cleaning methods used should minimize dispersal of the dust or loose materials into the air.
      • Frequently touched surfaces, such as handrails, doorknobs, and elevator buttons, must be disinfected throughout the workday.
      • Shared tools, equipment, and workspaces must be cleaned and disinfected prior to sharing.
      • Common areas, such as bathrooms, dining areas, break rooms, locker rooms, vehicles, and sleeping quarters, must be cleaned and disinfected at least daily.

As with other employment laws, the Standard provides that an employer cannot retaliate against an employee for alleging/reporting a violation of a plan or the HERO Act. Additionally, the Standard prohibits an employer from retaliating against an employee for refusing to work during a designated outbreak where an employee reasonably believes, in good faith, that work exposes them, other workers or the public, to an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with laws, rules, policies, orders of any governmental entity, including a plan or the HERO Act. In such circumstances, the employee or their designee/representative must notify the employer of the conditions at issue and the employer first has an opportunity to cure the conditions, unless the employer had or should have had reason to know about the conditions and maintained the conditions. Any records regarding notice of a potential risk must be maintained for two years from the designation of an outbreak.

Analysis and Key Dates

Every employer with a New York workplace must develop an infectious disease exposure plan which meets the requirements of the Standard by August 5, 2021. Employers must then communicate the plan to employees via verbal review (as noted in more detail below) by September 4, 2021. Note that while the DOL has published model template plans applicable to certain industries, as of now it has only published a generally-applicable Standard which sets forth the minimum requirements for all employers, regardless of industry and the model templates (which are examples and are not required to be used). Importantly, while employers must adopt and communicate plans as required by the HERO Act, employers do not need to implement the various safety control provisions in the plan because the DOH has not designated any airborne infectious disease as “a highly contagious communicable disease that presents a serious risk of harm to the public health.” No employer is required to put their safety plan into effect absent such a designation by the DOH.

Because no outbreak has been designated by the DOH at this time, only a verbal review of the contents of the plan is required. Specifically, employers must conduct a review of a plan with employees in a manner most suitable for the prevention of an airborne infectious disease, whether in person in a well-ventilated environment with appropriate face masks or personal protective equipment, or via audio or video conference technology. Note that the Standard provides that, where an employer does not adopt the model plan (which far exceeds the minimum Standards), the employer must adopt their alternative plan with a collective bargaining representative or, if the employer is not unionized, “with the meaningful participation of employees.” Accordingly, when announcing a plan, an employer should at minimum note that questions and input are welcome, and log any responses. Employers that maintain an employee handbook must also include their safety plan in their handbook or in a New York addenda to the handbook.

In the event the DOH designates an outbreak and a plan comes into effect, additional notice requirements apply. In those circumstances, an employer will be required to immediately review and update their airborne infectious disease safety plan, provide the verbal review described above again, provide written notice to employees of the plan in English or their primary language, and also post the plan at the workplace. An employer must then ensure a plan is followed and designated a supervisory employee to ensure compliance.

Finally, the workplace safety committee requirements of the HERO Act will take effect November 1, 2021. The DOL has yet to issue applicable guidance.