William J. Anthony
New York recently amended its Health and Essential Rights Act (“HERO Act”) and published its “Model Airborne Infectious Disease Exposure Prevention Plan.” While the Model Plan specifies that there is currently no airborne infectious disease outbreak, the HERO Act requires New York employers to take steps now to comply with the statute. “Airborne infectious disease” is defined as any infectious, viral, bacterial, or fungal disease that is transmissible through the air in the form of aerosol particles or droplets and is designated by the Commissioner of Health as a highly communicable disease that presents a serious risk of harm to the public health. While COVID-19 would have been so designated a year ago, it is not so designated at this time. Likewise, unless designated by the Commissioner of Health, the seasonal flu will not qualify. See the New York Department of Labor Airborne Infectious Disease Exposure Prevention Standard here: The Airborne Infectious Disease Exposure Prevention Standard (ny.gov). Nevertheless, employers cannot wait until an outbreak is declared to comply with the statute.
What Employers Need to Know
The Act has broad definitions of “employer,” “employee,” and “work site.” “Employer” includes any person, entity, business, corporation, partnership, limited liability company, or association employing, hiring, or paying for the labor of any individual. “Employee” means any person providing labor or services for remuneration within the state and without regard to immigration status. The definition includes independent contractors. A “work site” means any physical space, including vehicles, where work is performed and the employer has the ability to exercise control. A work site includes employer-provided housing and transportation. Thankfully, employees’ own homes and vehicles are not covered.
The Act prohibits employers from retaliating or taking adverse action against any employee who exercises rights under the statute; reports violations of the statute; reports airborne infectious disease exposure; or refuses to work where the employee reasonably believes, in good faith, that such work exposes employees to an airborne infectious disease due to working conditions inconsistent with the law. The law, however, requires the employee to first notify the employer of the problem and then give the employer an opportunity to cure it.
Finally, employers must designate one or more supervisory employees to ensure compliance with the Act as well as other health and safety statutes. It also permits employees to initiate and administer a joint labor-management workplace safety committee and requires employers to pay them for up to two hours of meetings per quarter and for training of up to four hours. This is limited to one such committee per work site and will include any pre-established committees. Two-thirds of the committee should be non-supervisory employees and selected by non-supervisory employees. The committee can raise health and safety concerns, review policies established to comply with the HERO Act, review any occupational safety and health policies, participate in site visits by the government agencies enforcing safety and health standards, and review any reports filed by the employer related to safety and health.
What Employers Need to Do Now
Unless you are a state agency or are covered by an OSHA standard setting forth applicable standards regarding COVID-19 and/or airborne infectious agents and diseases, you should keep reading. By August 5, 2021, the HERO Act requires employers to establish an Airborne Infectious Disease Prevention Plan by adopting the model plan relevant to its industry or by establishing an alternative plan that equals or exceeds the minimum standards set forth in the model plan. The industry-specific model plans can be found here: NY Hero Act, Model Airborne Infectious Disease Exposure Prevention Plan. If the employer adopts an alternative plan, it must negotiate it with any collective bargaining agent of its employees or with meaningful participation of the employees if they are not represented. In other words, it may be best to adopt the model plan right now.
Within 30 days of the plan being established, it must be provided (and be available upon request) to employees in their primary language (if the Commissioner’s model plan is not provided in the employee’s primary language, then an English version is acceptable). If the workplace is closed, the plan must be provided within 15 days of reopening and provided to new employees upon hire. The plan must also be posted prominently at each work site other than vehicles and must be incorporated into Employee Handbooks. Finally, employers should review the plan with employees through meetings, either live, with appropriate safeguards in place, or virtually.
We recommend that the employer document all of its efforts to comply with the Act as follows:
- Establish/adopt the Model Plan unless not required to do so.
- Publish it to employees and obtain acknowledgment of receipt either in writing or electronically.
- Post it prominently at each work site and add it to the Employee Handbook.
- Review the plan with employees and maintain an attendance log.
- Incorporate the plan review into new employee orientation.
- Ensure all independent contractors are included in these efforts.
- Establish a safety committee.
- Ensure employees have a clear understanding as to whom any violations are to be reported and emphasize the anti-retaliation provisions of the plan.
- Designate someone in the organization to maintain compliance with the Act moving forward.