November 02, 2021

Status Update: NY COVID-19 Restrictions and the NY HERO Act

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As we previously reported in detail here, New York State has passed the New York Health and Essential Rights Act, or the NY HERO Act, in an effort to prevent occupational exposure to airborne diseases. On July 6, 2021, the New York State Department of Labor published The Airborne Infectious Disease Exposure Prevention Standard (the "Standard") as well as model exposure prevention plans that employers may adopt in order to ensure compliance with the NY HERO Act. The Standard provides that most private employers in New York State must establish a written exposure prevention plan designed to eliminate or minimize employee exposure to airborne infectious agents in the event of an outbreak of an airborne infectious disease. This plan must be adopted by August 5, 2021.   

A general model exposure prevention plan, and industry-specific exposure prevention plans, are available on the NYSDOL's website. Employers can either adopt the applicable model plan provided by the State or establish an alternative plan that meets or exceeds the Standard's minimum requirements. While employers must select and obtain appropriate exposure controls based on the types and level of exposure risks their employees have during all activities performed at the worksite, all exposure prevention plans must address the following exposure controls: health screenings; face coverings; physical distancing; hand hygiene facilities; cleaning and disinfection; and personal protective equipment.

Employers have 30 days after adopting an exposure prevention plan, or until September 4, 2021, to provide a copy to their employees in writing in English and in the language identified by each employee as their primary language (unless the primary language identified is a language for which a model plan is not available from the NYSDOL). Employers must also provide new employees with the plan upon hire, post the plan in a visible and prominent location within the worksite, and include the plan in their employee handbook if the employer has a handbook that it provides to employees.

While exposure prevention plans need to be established by August 5, 2021 as explained above, they do not go into effect until 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. At this time, no such designation has been made.

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