As we have previously described, the HERO Act requires employers to adopt and maintain an airborne infectious disease prevention plan to be implemented when 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.” This plan will not apply to any seasonal or endemic infectious agent or disease, such as the seasonal flu, that has not been designated by the Commissioner as a highly contagious communicable disease that presents a serious risk of harm to the public health.
Currently, while employers must adopt plans as required by the law, no such designation has been made by the Commissioner and plans are not required to be in effect. It is possible, however, that with the increase in infections as the result of the COVID Delta variant, these plans could be activated.
The New York State Department of Labor released the Airborne Infectious Disease Prevention Standard, Model Airborne Infectious Disease Prevention Plan, and industry specific templates to facilitate compliance. The law required employers to adopt a written plan within 30 days of the release of these documents. Therefore, all employers should have had a written plan in place no later than August 5th.
Employers have 30 days after adoption to communicate the plan to their employees. There must be a “verbal review” of the plan as well as a posting of the plan in each workplace. In addition, while the DOL guidance is silent, the statute clearly states that, if you have an employee handbook, you must mention the plan in the handbook. The purpose of the verbal review and posting is so employees understand that the plan exists, where it can be found, and who is the responsible party for maintaining the plan. The effectiveness of your communication with employees will be the degree to which they can answer those questions. The deadline for communicating the existence of your plan to your employees is Saturday, September 4, 2021. Sample handbook language could read:
Airborne Infectious Disease Plan
As required by the Health and Essential Rights Act (HERO Act) of 2021, [Employer] has developed an Airborne Infectious Disease Plan. The airborne infectious disease exposure prevention plan must go into effect when 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.
The purpose of the NY HERO Act is to protect employees against exposure and disease during a future airborne infectious disease outbreak. Should such a designation be made, and the airborne infectious disease plan be implemented, you will be notified by [____________] and your role in the plan will be explained. In the meantime, you may see a copy of the plan by contacting [________]. Notices of this plan will also be posted at each worksite.
In general, other than developing and communicating the plan itself, there are no additional responsibilities placed on employers currently. It is only when the plan is activated by a designation of the Commissioner of Health that new employer obligations kick in.
There are, of course, retaliation protections for employees for reporting any violations of the employer’s plan and, interestingly, a new requirement to maintain for two years any written communication between employer and employee regarding any violation of the plan, when activated, that could lead to potential risk of exposure.
There is a second part of the HERO Act. Labor Law §27-d will be effective November 1, 2021 and will require employers with “at least 10” employees to permit the establishment of workplace safety committees to address airborne infectious disease in the workplace. The Department of Labor will be promulgating guidance/regulations regarding the implementation of these committees over the summer. Watch for more details as we get them.
Fall HR/Labor Webinar Schedule Announced
Mark your calendars. The Fall HR/Labor webinar series will be held on the following dates. Complete details and registration information will be coming soon. We will, of course have “pop up” webinars as events warrant.
September 16
Compensation Plans 101
October 21
The HERO Act and Employee Safety Committees
November 18
“Second Chance Initiative” – Employing those previously convicted of crimes
December 16
American Rescue Plan and the Higher Education Tax Exclusion that may allow employers to pay off student loans as a recruitment and retention tool for employers