In accordance with the New York Health and Essential Rights Act (NY HERO Act), on July 6, 2021, the New York State Department of Labor (NYS DOL), in consultation with the New York State Department of Health, published the Airborne Infectious Disease Exposure Prevention Standard and Model Airborne Infectious Disease Exposure Prevention Plan. Although the NYS DOL initially published the standard and model plan only in English, the NYS DOL has since furnished the standard and the model plan in Spanish. In addition to the non-industry specific model plan, the NYS DOL has created 11 industry-specific templates, which are available only in English.
When the standard and the model plan were published, COVID-19 had not received the commissioner’s designation as a highly contagious communicable disease presenting a serious risk of harm to the public health. However, as we previously reported, on September 6, 2021, New York State Commissioner of Health Howard A. Zucker designated COVID-19 as “a highly contagious communicable disease that presents a serious risk of harm to the public health in New York State.” By its terms, the commissioner’s designation was effective through September 30, 2021.
As of this writing, the designation has not been renewed or reinstated. However, on September 30, 2021, the NYS DOL updated the “Information & FAQs” initially issued on September 9, 2021. In addition to noting that the Commissioner of Health had designated COVID-19 as an airborne infectious disease, the new information sheet expressly focuses on section 1 of the NY HERO Act. In a possible signal that the NYS DOL does not anticipate issuing any additional industry-specific templates in the near term, the information sheet omits a question about whether more industry specific templates will be published and omits the statement that the NYS DOL “will consider additional templates as well as amendments to the existing templates as … feedback is received.”
Some of the other notable features of the September 30, 2021, information sheet are as follows.
Employee Review of Employer Plans
The September 30, 2021, information sheet purports to clarify the obligations of an employer that elects to develop its own plan instead of using one of the models created by the NYS DOL. The information sheet previously stated that “amendments to [the NYS DOL] templates that go beyond the open fields of such template likely do constitute an ‘alternative plan’ requiring employee review and/or participation.” Now, the information sheet explains:
Currently, if an employer adopts one of NYS DOL’s model plans, the employer doesn’t need to seek employee feedback. Should an employer develop its own plan, then the employer must review the plan with employees. However, employees do not need to approve the plan for it to be adopted.
In addition, the information sheet explains,
[I]f an employer modifies its HERO Act plan after November 1, 2021, and it is also an employer covered by Section 2 of the HERO Act, it will need to review the new or modified plan with a workplace safety committee allowed by Section 2 of the HERO Act.
Verbal Review of the Airborne Infectious Disease Exposure Prevention Plan
The September 30, 2021, information sheet also seems to modify the guidance about the timing of an employer’s obligation to conduct a verbal review of the plan. Although the question “[i]s an employer required to explain the plan to its employees?” appears in both editions of the information sheet, previously, the information sheet stated, “[a] verbal review of the plan with all employees must be conducted … A verbal review of the plan must also be conducted when a highly contagious communicable disease is designated by the Commissioner of Health as presenting a serious risk of harm to the public health.” (Emphasis added.) Currently, the information sheet advises that “[e]mployers must conduct a verbal review of the plan with all employees when the Commissioner of Health designates a disease as an airborne infectious disease that presents a serious risk of harm to the public health.” (Emphasis added.) As currently worded, the information sheet seems to indicate that employers are not required to provide a verbal review of the plan in the absence of, or prior to, a designation by the commissioner of health. The updated information sheet makes clear, however, that even if there is no designation, employers must:
- Create an airborne infectious disease exposure prevention plan.
- Give a copy to employees within 30 days after creating one.
- Give a copy to any new employees when they are hired.
- Post the plan in each work site so employees can view it.
Independent Contractors and Others Not Traditionally Defined as Employees
The updated information sheet more clearly addresses the question of whether independent contractors are covered by section 1 of the act. Initially, the information sheet explained that employers “are required to have … [a] plan in place for all work locations over which they have the ability to exercise control, including a work site with independent contractors.” Currently, the information sheet explains that section 1 “applies to people who [are] at all work sites over which employers have the ability to exercise control, including independent contractors, individuals working for staffing agencies, and other workers not traditionally defined as employees.”
Interestingly, although the information sheet initially directed employees to distribute the plan to independent contractors, individuals working for staffing agencies, and others broadly defined as “employees” under the act, the current version merely discusses distribution of the plan to “employees.” Although there appears to no longer be an expectation that employers routinely furnish the plan to all individuals who are covered by section 1, employers may wish to remain aware that section 1 of the act includes a requirement to make the plan “available, upon request, to all employees and independent contractors,” among others.
Applicability of the Section 1 of the Act to Health Care Employees
The information sheet also more directly addresses health care industry employees. Previously, the information sheet stated that “[e]mployers in the healthcare industry are not covered by the HERO Act if the employer is covered by a temporary or permanent standard adopted by the Occupational Safety and Health Administration (OSHA),” but also cautioned, “[e]very employer must make its own determination as to whether or not it, or any of its employees, is covered by a temporary or permanent OSHA standard.” (Emphasis in original.) The question, “Is the healthcare industry covered by the HERO Act?” is omitted altogether from the updated information sheet, which now explains:
Currently, section 1 of the HERO Act does not apply to employees who are covered by OSHA’s emergency temporary standard for health care workers related to COVID-19, which became effective on June 21, 2021.
In addition, the information sheet currently explains:
Section 1 of the HERO Act also does not apply to employees covered by any other OSHA standard specifically related to airborne infectious diseases or COVID-19 in particular. Currently, OSHA does not have such a standard, by NYS DOL will update information if and when OSHA does create a standard that applies to any additional employees.
Preview of Forthcoming Guidance Regarding Section 2 of the Act
In addition to the modifications to the guidance regarding section 1 of the act, the September 30, 2021, information sheet makes clear the NYS DOL’s intention to provide guidance about section 2 of the act in a separate document that will be issued before November 1, 2021, when section 2 goes into effect. Of possible significance, the September 30, 2021, information sheet eliminates a statement that under Section 2 of the act, “employers who employ at least 10 employees are required to establish a workplace safety committee,” and instead states that Section 10 “requires employers with 10 or more employees to allow employees to create a joint labor-management workplace safety committee.” (Emphasis added.) This language more closely tracks the language of the act, which states that employers “shall permit employees to establish and administer” a workplace safety committee.
Next Steps for New York Employers
Employers that have not yet adopted a plan may wish to complete that activity given the passage of the August 5, 2021, deadline for doing so. As the updated information sheet explains:
Employers may be required to pay penalties of $50 or more per day for not creating a plan and up to $10,000 for not following an adopted plan. Section 1 of the HERO Act also allows employees to bring a private right of action against their employer for not adopting a plan or not following a plan in certain situations.
In addition, employers may wish to continue to monitor information from the New York State Department of Health to determine if the commission of health makes another designation. Finally, employers may wish to continue to monitor information from the NYS DOL concerning the HERO Act, including the expected guidance concerning section 2 of the act.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.
For more information on the latest labor and employment law topics affecting New York employers, please join us for our upcoming webinar, “Navigating New York Employment Law: Lessons Learned From the COVID-19 Pandemic and Charting the Way Forward,” which will take place on Tuesday, October 5, 2021, from noon to 1:30 p.m. EDT. The speakers, Kelly M. Cardin, William F. Cusack, Simone R. D. Francis, Jessica R. Schild, and Christina M. Schmid, will discuss recent legislative developments, new guidance from the New York State Department of Labor detailing employers’ obligations under the New York Health and Essential Rights Act (NY HERO Act), and key compliance considerations. Register here.
