NY HERO Act Health and Safety Plans Are Due by August 5, 2021
Under the New York Health and Essential Rights Act (the “NY HERO Act”), private employers in the State of New York are required by August 5, 2021 to adopt health and safety plans aimed at preventing the spread of airborne infectious diseases. Plans are required to be in place in the event of a future outbreak, as designated by the New York Commissioner of Health.
NY HERO Act Plans
Employers must adopt the model plan applicable to their industry, as published by the New York State Department of Labor (NYSDOL). Model plans are available at the NYSDOL website (linked here).
Otherwise, employers must develop an alternate plan that equals or exceeds the standards set forth under the applicable industry-specific plan. An employer choosing to develop an alternate plan must do so either by agreement with the collective bargaining representative, if there is one, or with “meaningful participation of employees,” in the words of the NY HERO Act, if there is no collective bargaining representative.
NY HERO Act Standards
In addition, employers must follow the NYSDOL’s standards for implementing the NY HERO Act (linked here). The standards include the following provisions:
NY HERO Act plans must be in writing, made available to employees, and contain controls relating to employee exposure to an airborne infectious disease during a designated outbreak.
In addition to being in writing, plans must be verbally reviewed with employees.
While plans must be adopted by August 5, 2021, no employer is required to put a plan into effect until an airborne infectious disease is designated by the New York State Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health.
Controls relating to employee exposure to an airborne infectious disease must cover the use of health screening, face coverings, physical distancing, hand hygiene, workplace cleaning and disinfection, and the use of personal protective equipment.
Employers are prohibited from retaliating against employees for: a.) exercising rights under the NY HERO Act; b.) reporting violations of law; c.) reporting concerns about exposure to an airborne infectious disease; and d.) in some cases (as more fully defined by the NYSDOL’s standards) refusing to work, if such refusal is based on a reasonable belief, in good faith, that working would create an unreasonable risk of exposure to an airborne infectious disease.
Next Steps for Employers
As mentioned above, employers will need to adopt the model NY HERO Act plan applicable to their industry (or develop an alternate plan) by August 5, 2021. In addition, employers will need to remain informed. While employers are required to adopt NY HERO Act plans, those plans are not required to be in effect until an airborne infectious disease outbreak is designated by the New York State Commissioner of Health. Employers should monitor the NY HERO Act website (linked here) for designations and updates.
Questions
Shehan Legal closely monitors legal developments affecting employees and employers, in New York and Virginia, and federal government employees worldwide. For more information visit www.shehanlegal.com. Or, to speak with attorney Kevin Shehan, please call 917-740-7805, email kevin@shehanlegal.com, or send a message using Shehan Legal’s Contact page (linked here).
ADDITIONAL RESOURCES:
The NY HERO Act is codified at New York Labor Law Sections 27-d and 218-b. Senate Bill S06768, which contains the full text of the NY HERO Act, as amended, is available at the New York State Assembly website (linked here).
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