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October 28, 2021

Employers Must Activate Their NY HERO ACT Exposure Prevention Plans

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As we explained in our previous client alert, the NY HERO Act requires that all employers create an airborne infectious disease prevention plan and that they activate that plan once the Commissioner of Health designates a disease as highly contagious and a serious risk of harm to the public health. On September 6, 2021, the Commissioner announced that COVID-19 was being designated as "a highly contagious communicable disease that presents a serious risk of harm to the public health in New York State, in which the Centers for Disease Control and Prevention (CDC) has identified the level of transmission of such disease as ‘substantial' or ‘high.'"  The Commissioner's designation will be reviewed on September 30, 2021, and may continue thereafter.

In the meantime, the Commissioner's designation of COVID-19's as a highly contagious disease under the NY HERO Act has triggered certain requirements for employers across the State.  Employers must:

  1. Immediately review their exposure prevention plan and update the plan, if necessary, to ensure that it incorporates current information, guidance, and any mandatory requirements issued by federal, state, or local governments related to COVID-19
    •  Notes:
      • Employers should expect that, similar to the beginning of the pandemic, guidance concerning COVID-19 will evolve at the federal, state, and local levels. As explained further below, employers are required to update their plans with new protocols as the NY Department of Health and the CDC develop them
      • Thus, employers should consult with counsel to ensure that they understand the current requirements and that their exposure prevention plan is up to date
  2. Finalize and promptly activate their worksite exposure prevention plan;
    •  Notes:
      • The State's Model Exposure Prevention Plan currently does not create any exceptions or exemptions for vaccinated employees. Given that, as of September 1, 2021, the CDC recommends that fully vaccinated individuals wear masks indoors in public if they are in an area of substantial or high transmission, NY employers should assume that all employees must follow the protocols outlined in their exposure prevention plan.
      • All employers, whether they adopted the State's exposure prevention plan template or created their own alternative plans (which must meet or exceed the State's model plan), will have to implement protocols similar to those required under the New York Forward guidance (which has been optional for most NY employers since June 2021).
      • These mandatory protocols include, but are not limited to:
        • "Stay at home" policies for symptomatic employees and/or those who test positive for COVID-19;
        • Employee health screenings, either daily or at the beginning of their shifts, as applicable;
        • Requiring employees to wear face coverings throughout the workday to the greatest extent possible;
        • Physical distancing of 6 feet and avoiding unnecessary gatherings;
        • Activating engineering controls, such as improving ventilation;
        • Activating administrative controls, such as increasing space between workers, limiting the use of shared workstations, rearranging traffic flow, etc.; and
        • Cleaning and disinfection practices.
  3. Provide each employee with a copy of the exposure prevention plan in English or in the language identified as the primary language of such employees, if available;
  4. Post a copy of the exposure prevention plan in a visible and prominent location at the worksite (except when the worksite is a vehicle);
  5. Ensure that a copy of the exposure prevention plan is accessible to employees during all work shifts; 
  6. Provide a verbal review of the exposure prevention plan; and
    • Note: According to NY HERO Act guidance released to date, the "verbal review" does not have to occur in person and may be completed via audio or a video conference platform. However, employers should strive to conduct a live review (whether in person, over a conference call, or during a video meeting) since it is unlikely that simply emailing the exposure prevention plan to employees would satisfy the "verbal review" requirement.
  7. Train all employees on the following:
    • The elements of the employer's exposure prevention plan;
      • Note: While there is no guidance on this point, employers will likely satisfy this element of the training by conducting the verbal review described in No. 6, above.
    • COVID-19 and the disease(s) it can cause;
    • The signs and symptoms of COVID-19;
    • How COVID-19 spreads;
    • The worksite activities/locations that may involve exposure to COVID-19;
    • Use and limitations of exposure controls; and
    • A review of the NY HERO Act Airborne Infectious Disease Exposure Prevention Standard, including employee rights provided under the NY HERO Act.
  8. While the designation remains in effect, employers must also:
    • Ensure that their exposure prevention plan is being followed by:
      • Assigning enforcement responsibilities to one or more supervisory employees (who should be named in the exposure prevention plan) and ensuring that those employees are adequately enforcing the exposure prevention plan;
      • Monitoring and maintaining exposure controls; and
      • Regularly checking for updated information provided by the NY Department of Health and the CDC.
        • Note: The employer must update the exposure prevention plan as necessary to reflect the latest NY Department of Health and CDC control measures.

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