In August 2021, all private employers with worksites in New York State were required to establish an airborne infectious disease exposure prevention plan in accordance with the New York Health and Essential Rights Act (“HERO” Act). While the HERO Act required adoption and communication of a plan – either the model standard prepared by the Commissioner of Labor or an alternative plan equaling or exceeding the model’s minimum standards – it did not require employers to implement their plan until a particular disease was designated by the State Commissioner of Health as a “highly contagious communicable disease that presents a serious risk of harm to the public health.”
COVID-19 Designated as Highly Contagious Communicable Disease: Now What?
On September 6, 2021, the New York State Commissioner of Health designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health. Now that this designation has been made, New York employers must:
- Immediately review their exposure prevention plan and update the plan, if necessary, to ensure that it incorporates current information, guidance, and mandatory requirements issued by federal, state, or local governments related to Covid-19
- Finalize and promptly activate the worksite exposure prevention plan
- Provide a verbal review of the plan to all employees
- Provide each employee with a copy of the plan in English or in the language identified as the primary language of such employees, if available
- Post the plan at the worksite and include a copy of the plan in any employee handbook
There are currently no mandatory requirements in effect regarding Covid-19 that would require modifications of an employer’s plan. This leaves employers (at least for now) with significant discretion in the selection of appropriate exposure controls based on the types and level of exposure risks employees have at the worksite. Exposure controls include health screenings, face coverings, physical distancing, hand hygiene facilities, cleaning and disinfecting processes, and personal protective equipment.
Of course, to the extent an employer has outlined specific exposure controls in its exposure prevention plan, those controls should be followed.
Enforcing the Plan
While Covid-19’s “highly contagious communicable disease” designation remains in effect, employers must:
- Ensure that the worksite’s exposure prevention plan is effectively followed and enforced
- Designate one or more supervisory employees to enforce compliance with the plan and any other federal, state, or local guidance
- Monitor and maintain exposure controls
- Regularly check for updated information and guidance provided by State Department of Health and the Centers for Disease Control and Prevention concerning Covid-19 and update the plan as necessary to reflect current State Department of Health or Centers for Disease Control and Prevention recommended control measures
Violations of the HERO Act may result in civil fines and penalties. The law also allows for a private right of action. Employers that have not yet adopted and activated a prevention plan should do so immediately.