Earlier this year, New York lawmakers passed a novel, sweeping overhaul of the State’s workplace health and safety laws. Known as the HERO Act, the law is intended to “to protect employees against exposure and disease during a future airborne infectious disease outbreak.”
Among other things, the HERO Act requires that the New York State Department of Labor (NYSDOL) create written model airborne infectious disease exposure prevention standards to cover Empire State workplaces. More particularly, the NYSDOL is tasked with creating separate model standards for (i) industries representing a significant portion of the workforce, or those with unique characteristics requiring distinct standards, as well as (ii) all worksites that are not included in the specific industry standards.
The NYSDOL’s publication of the model standards is important for a host of reasons, including because all New York employers – regardless of size, industry, or location – will then have 30 days from the date on which the NYSDOL publishes the model written standards, to establish their own airborne infectious disease exposure plan. This requirement can be satisfied by adopting the NYSDOL’s model standards (as applicable based on industry), which it is expected that many, if not most, New York employers will do. (The requirement can also be satisfied by instead adopting an alternative plan that meets or exceeds the NYSDOL’s standards.)
To that end, earlier today, the NYSDOL, in consultation with the New York State Department of Health, issued the long-awaited Airborne Infectious Disease Exposure Prevention Standard, Model Airborne Infectious Disease Exposure Prevention Plan, and various industry-specific model plans for the prevention of airborne infectious disease. The specific industries covered are agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail. All of the materials can be accessed here.
Now that the NYSDOL has published the model standards, New York employers will, as noted above, have until early August to adopt their own airborne infectious disease exposure plan. Once the plan is adopted, employers must disseminate a copy to their workforce – including all full- and part-time employees, independent contractors, individuals working for digital applications/platforms, workers hired through a staffing agency, and domestic workers – in writing. The plan must be provided to existing workers within 30 days after the employer’s establishment of it (but, in any event, no later than 60 days after the NYSDOL’s publication of the model standards), and, thereafter, to new hires upon joining. If there is ever a future period of closure due to an airborne infectious disease, the plan must yet again be provided to all workers – this time within 15 days after reopening following the closure.
In addition to written distribution, the airborne infectious disease exposure plan must also be posted in a visible and prominent location with the workplace. Additionally, the policy must be included in the business’s employee handbook/manual. Lastly, employers must make the plan available upon request by any employee, independent contractor, or employee or collective bargaining representative.
Importantly for businesses with remote workers, an airborne infectious disease exposure plan is not required to be adopted for telecommuting or telework sites unless the business has the ability to exercise control of the site.
If you have any questions or concerns about the HERO Act or how it affects your company, Reed Smith’s experienced Labor & Employment Group is ready to speak with you.