New York HERO Act Update: Commissioner of Health Designates COVID-19 as Airborne Infectious Disease

On September 6, 2021, Governor Hochul announced that the New York State Commissioner of Health officially designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health. This designation triggers the obligation for employers to implement their New York HERO Act plans. 

The New York Health and Essential Rights Act (commonly referred to as the NY HERO Act) was signed by Governor Cuomo on May 5, 2021, and amendments to the NY HERO Act were subsequently passed on June 11, 2021. The NY HERO Act applies to private employers and their employees, and mandates workplace health and safety measures related to airborne infectious diseases. A major component of the NY HERO Act is the requirement that employers create and adopt airborne infectious disease exposure prevention plans for their workplaces. As previously reported, the deadline for employers to adopt a plan was August 5, 2021, and the deadline to distribute the plan to employees was September 4, 2021. Because COVID-19 is now designated by the Commissioner as a highly contagious communicable disease that presents a serious risk of harm to the public health, employers must now go one step further and implement their NY HERO Act airborne infectious disease exposure prevention plans.

Per the Model Airborne Infectious Disease Exposure Prevention Standard (posted on the NY DOL website), employers must take the following steps when a designation is made and plan implementation is necessary:

  • Review their plan to ensure that it incorporates current COVID-19 guidance issued by federal, state, and local governments, and update the plan as necessary.
  • Finalize and activate the plan promptly and take steps to ensure it is actively being followed (this includes assigning enforcement responsibilities, monitoring and maintaining exposure controls, and regularly checking for updated guidance related to COVID-19).
  • Provide a verbal review of the plan to employees. This verbal review should not only cover the plan, but also related policies and employee rights under the NY HERO Act.
  • Provide each employee with a copy of the plan and post the plan in a visible and prominent location in the workplace.
  • Designate supervisory-level employees to enforce compliance with the plan and any other federal, state, or local guidance related to COVID-19 prevention in the workplace. 

Harter Secrest & Emery’s Labor and Employment attorneys are here to answer any questions you may have regarding the NY HERO Act. Please contact any Labor and Employment team member at 585.232.6500 or 716.853.1616.

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