Employers’ Obligation to Implement Their Exposure Prevention Plans Triggered by Formal Designation of COVID-19 as a “Highly Contagious Communicable Disease” under NY’s HERO ACT
On September 6, 2021, New York Governor Kathy Hochul announced that the NYS Department of Health has designated COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health” under New York’s HERO Act. This formal designation has immediate significance for all New York employers.
As we previously reported, on July 6, 2021, the NYS Department of Labor published the Airborne Infectious Disease Exposure Prevention Standard and Model Airborne Infectious Disease Exposure Prevention Plan, which required employers to adopt an exposure prevention plan by August 5, 2021 and distribute the plan to employees no later than September 4, 2021.
The NYS DOH’s designation of COVID-19 under the HERO Act triggers employers to promptly take steps to implement their exposure prevention plans. Specifically, employers must:
- immediately review their plans and update them as necessary to reflect current information, guidance, and mandatory requirements issued by federal, state, and local governments;
- distribute the updated plan to all employees, post a copy of the plan in a visible and prominent location at the worksite, and ensure that a copy of the plan is accessible to employees during all work shifts;
- verbally inform all employees of the existence and location of the plan;
- designate a supervisory employee to monitor any updates to federal, state, or local guidance related to preventing the spread of the airborne infectious disease; and
- train employees on all elements of the plan, including: (1) the infectious agent in question and the disease(s) it can cause, (2) the signs and symptoms of the disease, (3) how the disease can be spread, (4) an explanation of the plan, (5) the activities and locations at the employer’s worksite that may involve exposure to the infectious agent, (6) the use and limitations of exposure controls, and (7) a review of the NY Standard and employee rights under New York Labor Law, Section 218-B.
The designation will remain in effect until September 30, 2021, at which point the Department of Health will “determine whether to continue [the] designation.” We will continue to monitor guidance and information from the NYS DOH and the NYS DOL to determine additional or continuing obligations for employers, if any.