September 15, 2021 The New York Health and Essential Rights Act (“HERO Act”) – Designation of COVID-19
KEEPING YOU INFORMED…
We are writing to update you on the New York Health and Essential Rights Act (“HERO Act”), which mandates workplace health and safety protections for private sector employers with respect to airborne infectious diseases.
In our July 23, 2021 memorandum, we advised that notwithstanding COVID-19’s status as an “airborne infectious disease,” the Department of Labor (“DOL”) had instructed that employers’ airborne infectious disease exposure prevention plans were not required to be in effect. Governor Kathy Hochul, however, has now designated COVID-19 an airborne infectious disease that poses a “serious public health risk.” This designation triggers the obligation to immediately implement your business’ Airborne Infectious Disease Exposure Prevention Plan (“Plan”).
As discussed in our July 23, 2021 memorandum, private sector employers should have already adopted the DOL’s Model Airborne Infectious Disease Exposure Prevention Plan or created an alternative plan that meets or exceeds the minimum standards published by the DOL. To implement a Plan, a private sector employer must:
- Ensure that the Plan is up to date and in compliance with the DOH model plan (or an enhanced alternative plan);
- Activate the Plan (which, at a minimum, must include controls such as daily health screenings, face coverings, physical distancing, access to hand hygiene facilities, regular cleaning and disinfection, protocols for isolating symptomatic employees and notifying impacted employees if an actual or suspected case of COVID-19 occurs in the workplace);
- Provide a verbal review of the Plan to all employees (in a manner suitable for the prevention of an airborne infectious disease, which may include audio or video conferencing, if available); and
- Provide a copy of the Plan to all employees, post it in a prominent and visible location at the worksite and ensure that a copy of the Plan is accessible to employees during all work shifts.
For as long as this designation remains in effect, a private sector employer must:
- Assign enforcement responsibilities to one or more supervisory employees;
- Monitor and maintain exposure controls;
- Regularly check for updated information and guidance provided by the State Department of Health and the Centers for Disease Control and Prevention concerning COVID-19; and
- Update the Plan, when necessary, so that it reflects the current State Department of Health or Centers for Disease Control and Prevention recommended control measures.
If you have any questions regarding the HERO Act’s requirements or would like assistance with preparing your workplace’s airborne infectious disease exposure prevention plan, please contact Adam Ross (firstname.lastname@example.org) or one of our other attorneys at 631-694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
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© Lamb & Barnosky, LLP 2021