On July 6, the New York State Department of Labor (NYS DOL) published the Airborne Infectious Disease Exposure Prevention Standard (“Prevention Standard”), a model airborne infectious disease exposure prevention plan (“Model Plan”) and various industry-specific model plans1 for the prevention of airborne infectious disease, as required by the New York Health and Essential Rights Act (NY HERO Act). Private employers have until August 5 to adopt the Model Plan developed by NYS DOL or establish an alternative plan that meets or exceeds the Prevention Standard’s minimum requirements.
Background
On May 5, Gov. Cuomo signed into law the NY HERO Act, which requires all employers to implement safety standards to prevent the further spread of COVID-19 and other airborne diseases in the workplace and requires employers with ten or more employees to allow their employees to establish a workplace safety committee. The act requires employers to adopt an airborne infectious disease exposure prevention plan within 30 days after the commissioner of the New York Department of Labor publishes the general and industry-specific model safety standards.
NYS DOL Publishes Standards and Model Plans
In releasing the standards, NYS DOL has stated on their website that, while employers must adopt plans as required by the law, the plans need to be activated only “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, DOL’s website states, “[A]s of the date of this writing no designation has been made and plans are not required to be in effect.” Thus, while employers must adopt a plan by August 5, they are currently not required to put the adopted plan into effect. Despite the status of the COVID-19 pandemic, the commissioner has not made this designation at this time.
However, employers must be prepared to promptly implement the adopted plan if/when a designation is put into effect. In published materials, DOL instructs employers to check the websites of the departments of Health and Labor for up-to-date information regarding whether a designation has been put into effect, as any such designation will be prominently displayed. In the event a designation is made by the commissioner of the Department of Health, employers must activate the adopted prevention plan and conduct a verbal review of the prevention plan with all employees.2
As anticipated, the models generally follow the reopening guidelines issued by New York State that were applicable during the declared public health emergency. The Model Plan and Prevention Standard include specific minimum controls, including daily employee health screenings, face coverings, hand hygiene, social distancing, and workplace cleaning and disinfecting, as well as advanced controls (i.e., engineering controls and administrative controls) for activities where the minimum controls alone will not provide sufficient protection.
As a reminder, pursuant to an emergency regulation issued on June 23 and separate from the NY HERO Act, employees who are not fully vaccinated are required to wear a face covering when in direct contact with customers or members of the public, or when unable to maintain social distance.3
Next Steps for Employers
- Adopt the Model Plan or establish an alternative plan that meets or exceeds the minimum requirements set forth in the Prevention Standard by August 5.
- Provide a copy of the adopted prevention plan in English or in the primary language4 of employees to all employees and post the same in a visible and prominent location within each work site by September 4.
- Monitor the NYS DOH and NYS DOL websites for updates regarding the commissioner’s designation.
- For employers with ten or more employees, begin to allow employees to establish a workplace safety committee on or after November 1.
Please contact a member of the Manatt team with any questions related to compliance with these requirements.
1 DOL has prepared industry-specific guidance for the following industries: agriculture, construction, delivery services, domestic work, emergency response, food service, manufacturing and industrial, personal services, private education, private transportation and retail.
2 The verbal review must be conducted “in person in a well-ventilated environment with appropriate face masks or personal protective equipment, or via audio or video conference technology.”
3 10 NYCRR 66-3.1 (b).
4 According to DOL, the Prevention Standard and Model Plan will be available in Spanish in the coming days.