On September 6, 2021, Governor Hochul declared COVID-19 as an “airborne infectious disease” thereby triggering the NY Hero Act.
We previously wrote about how the NY Hero Act did not require immediate implementation since COVID-19 was not previously declared an airborne infectious disease, and thus employers only needed to adopt, but not implement a NY Hero Act prevention plan. Now, the time has come for employers to immediately implement the plan that employers had adopted (whether that be the model plan promulgated by New York (specific to a particular industry) or a plan devised by an employer that meets the minimum requirements of the model plan), due to the recent designation by Governor Hochul.
More specifically, New York employers must:
- Immediately review the employer’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;
- Finalize and promptly activate the worksite exposure prevention plan;
- Provide a verbal review to employees, reviewing the employer’s policies as well as employee’s rights under the NY Hero Act. This verbal review can be conducted either in person, or via audio or video conference technology; and
- 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 (a model Spanish plan is located here), and
- Post a copy of the exposure prevention plan in a visible and prominent location at the worksite; and
- Ensure that a copy of the exposure prevention plan is accessible to employees during all work shifts.
Moreover, so long as the designation remains in effect, employers must:
- Ensure that the worksite’s exposure prevention plan is effectively followed by:
- Assigning enforcement responsibilities and ensuring that adequate enforcement of the worksite’s exposure prevention plan takes place;
- Monitoring and maintaining exposure controls; and
- Regularly checking for updated information and guidance provided by the New York 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.
- Designate one or more supervisory employees to enforce compliance with the exposure prevention plan; the NY Hero Act prevention 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.
The Hero Act provides a private right of action for employees who are retaliated against by their employers. Specifically, the Hero Act mandates that employers may not “discriminate, threaten, retaliate against, or take any adverse action” against employees for: (1) exercising their rights under the Hero Act or the employer’s plan; (2) reporting violations of the Hero Act or the employer’s plan to officials; (3) reporting or seeking assistance for an airborne exposure concern to an employer or official entity; or (4) refusing to work when the employee, acting in good faith, believes that dangerous exposure caused by working conditions inconsistent with laws or the required safety plan exists, with certain exceptions.
For more information about the NY Hero Act or other requirements for New York employers, please contact one of the authors of this post or the Hogan Lovells lawyer with whom you work.
Authored by Ken Kirschner and Zach Siegel.