NY HERO Act Update: Covid-19 Designated an Airborne Infectious Disease

On September 6, 2021, Governor Kathy Hochul announced that the Commissioner of Health designated COVID-19 a highly contagious communicable disease that presents serious harm to the public health. This designation mandates that NY employers activate their workplace safety plans to prevent workplace infections.

For more background information on the NY HERO Act see our prior e-alerts here and here.

According to the Airborne Infectious Disease Exposure Prevention Standard, once the NY Commissioner of Health designates an airborne infectious disease as highly contagious, the employer must complete the following:

8. Implementation of the exposure prevention plan during an outbreak of an airborne infectious disease:

i. When a highly contagious communicable disease is designated by the Commissioner of Health as presenting a serious risk of harm to the public health, each employer shall:

a. Immediately review the worksite’s exposure prevention plan and update the plan, if necessary, to ensure that it incorporates current information, guidance, and mandatory requirements issued by federal, state, or local governments related to the infectious agent of concern;

b. Finalize and promptly activate the worksite exposure prevention plan;

c. Provide the verbal review required in paragraph (d) of this section; and

d. Provide each employee with a copy of the exposure prevention plan in English or in the language identified as the primary language of such employees, if available, and 

   1. Post a copy of the exposure prevention plan in a visible and prominent location at the worksite (except when the worksite is a vehicle); and

   2. Ensure that a copy of the exposure prevention plan is accessible to employees during all work shifts.

e. Employers that utilize a template exposure prevention plan prepared by the Department of Labor shall not be responsible for errors in translations relating to such. 

ii. While the designation remains in effect, the employer shall:

a. Ensure that the worksite’s exposure prevention plan is effectively followed by: 

   1. Assigning enforcement responsibilities in accordance with Labor Law Section 218-b(2)(i), and ensuring that adequate enforcement of the worksite’s exposure prevention plan takes place;

   2. Monitoring and maintaining exposure controls; and 

   3. Regularly checking for updated information and guidance provided by State Department of Health and the Centers for Disease Control and Prevention concerning the airborne infectious disease and updating the exposure prevention plan, when necessary, so that the plan reflects current State Department of Health or Centers for Disease Control and Prevention recommended control measures.

b. Designate one or more supervisory employees to enforce compliance with the exposure prevention plan; this standard; and any other federal, state, or local guidance related to preventing the spread of the airborne infectious disease as applicable to employees and third parties such as customers, contractors, and members of the public within the workplace. No individual who is not a supervisory employee shall have responsibility for overseeing compliance with the requirements of the exposure prevention plan.

Keep checking the NY Department of Labor website regularly for additional information.