NY DOL Publishes its Airborne Infectious Disease Exposure Prevention Plan in Accordance With the NY HERO Act

As we previously reported, in an effort to prevent occupational exposure to an airborne infectious disease, the New York legislature on May 5, 2021 passed the New York Health and Essential Rights Act, or NY HERO Act, which amends the New York Labor Law (NYLL) by adding two new sections.  Section 1 of the Act requires that employers prepare model safety plans and prohibits discrimination and retaliation against any employees who exercise their rights under the Act. Section 2 requires certain employers to establish joint workplace safety committees with their employees.

Subsequently, on June 14, 2021, New York State passed chapter amendments to the law that, among other things, clarified that the New York State Department of Labor (NYDOL), in consultation with the New York State Department of Health, would publish their generic and industry-specific airborne infectious disease prevention plans and advise when employers have to implement their own specific airborne infectious disease prevention plans.

On July 6, 2021, the New York State Department of Labor (NYDOL) did just that—it published a series of documents including (1) its Airborne Infectious Disease Exposure Prevention (AIDEP) Standard; (2) a Model Airborne Infectious Disease Exposure Prevention Plan (“Model Plan”); and (3) eleven industry-specific template plans.

Consequently, New York employers must now adopt the NYDOL’s Model Plan, or their own plan that at least meets the minimum standards set by the Model Plan’s requirements (“Alternate Plan”), by August 5, 2021, and post and distribute the plan to its employees within 30 days thereafter, or by September 4, 2021.

New York State employers, however, need not actually implement any of the protocols contained in the safety plans at this time. The plans are only activated if and when the New York State Commissioner of Health designates an airborne infectious disease as a highly contagious communicable disease that presents a serious risk of harm to the public.  As of the date of this ASAP, no designation has been made and, therefore, employer AIDEP Plans are not yet required to be in effect.

Nevertheless, employers must in the interim adopt the Model Plan or an Alternate Plan.

The NYDOL also adopted industry-specific safety plans, for the following industries:

• Agriculture
• Construction
• Delivery Services
• Domestic Workers
• Emergency Response
• Food Services
• Manufacturing and Industry
• Personal Services
• Private Education
• Private Transportation
• Retail

The AIDEP Standard

The AIDEP Standard summarizes the requirements of the HERO Act and identifies steps that New York State employers must undertake to comply with the HERO Act.  Specifically, employers must establish a written exposure prevention plan designed to eliminate or minimize employee exposure to airborne infectious agents in the event of an outbreak of an airborne infectious disease, by adopting the NYDOL’s Model Plan, an industry-specific plan, or an Alternate Plan.

If an employer chooses to develop an Alternate Plan, it must do so pursuant to an agreement with the collective bargaining representative, if any, or, where there is no collective bargaining representative, with meaningful participation of employees.  An Alternate Plan must be tailored and specific to the hazards in the specific industry and the employer’s worksites.

In any event, regardless of which plan employers adopt, the HERO Act imposes numerous continuing obligations.  In particular, employers also must:

• periodically review and update the exposure prevention plan;
• make the exposure prevention plan available, upon request, to all employees, employee representatives, collective bargaining representatives, independent contractors, the NYDOL, and the NY Department of Health;
• during an airborne infectious disease outbreak, conduct a verbal review with their employee populations of their exposure prevention plans and of employee rights under the HERO Act, in a manner most suitable for the prevention of an airborne infectious disease, whether in person in a well-ventilated environment with appropriate face masks or personal protective equipment, or via audio or video conference technology;
• ensure that the safety plan can be activated in the event of a highly contagious communicable disease (seasonal flus are specifically excluded);
• in the event of an airborne infectious disease outbreak, implement the plan;
• ensure that the worksite’s exposure prevention plan is effectively followed by:
  • Assigning enforcement responsibilities in accordance with the HERO Act, 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 State Department of Health and the Centers for Disease Control and Prevention (CDC) concerning the airborne infectious disease and updating the exposure prevention plan, when necessary, so that the plan reflects current State Department of Health or CDC-recommended control measures; and
• designate one or more supervisory employees to enforce compliance with the exposure prevention plan; the NYDOL’s 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.

Exposure Controls

Certain exposure controls are required to be included in the employer’s exposure prevention plan, including health screenings, face coverings, physical distancing, hand hygiene facilities, cleaning and disinfecting, and personal protective equipment.

No Retaliation

The HERO Act prohibits employers from discriminating or retaliating against employees for exercising their rights under the Act, reporting an airborne infectious disease concern, or reporting violations of the law or the employer’s plan to federal, state or local agencies or officials, if they reasonably believe, in good faith, that a violation exists.

The Act also prohibits retaliation against employees for refusing to work if they reasonably believe, in good faith, that such work exposes them, other workers, or the public, to an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with laws, rules, policies, or orders of any governmental entity.

As a reminder, the HERO Act provides employees with the right to file a lawsuit in court alleging violations of the statute provided that the employee notified its employer about working conditions that are inconsistent with the applicable safety plan and if the employer failed to cure the conditions.  An employee may notify the employer of a violation verbally or in writing, including electronically.

Finally, an employer must maintain records that exist between the employer and employee regarding a potential risk of exposure for two years after the Commissioner of Health has determined the place of employment is no longer at high risk of disease.

Next Steps for Employers

Employers presently must either adopt the Model Plan or they can develop their own which must meet the minimum standards in the state-issued plans.  Again, any Alternate Plan must be developed pursuant to an agreement with the collective bargaining representative, if any, or with meaningful participation by employees.

In addition, every New York employer must provide the airborne infectious disease exposure prevention plan to its employees in writing, in English and in the language identified by each employee as the primary language of such employees, within 30 days after adoption of the plan.  Also, if a worksite is forced to close due to a highly contagious disease emergency, then employers must distribute the safety plan to all employees within 15 days after reopening.  In addition, safety plans must be distributed to all newly hired employees upon their commencement of work.  These safety plans must also be posted in a prominent location at the worksite and be included in the employer’s employee handbook.

Employers that fail to adopt safety plans can be penalized in the amount of fifty dollars for each day of non-compliance. Additionally, an employer may be fined between one thousand and ten thousand dollars for failing to abide by its own safety plan.  In addition, as we previously reported, employers may also be subject to civil litigation.

Finally, Section 2 of the HERO Act, which requires that employers with at least ten employees permit their employees to establish and administer “joint-labor-management workplace safety committee[s],” goes into effect on November 1, 2021. However, the amendments clarify that an employer need not create a second committee if one that meets the Act’s requirements is already in existence. Moreover, the amendments clarify that a committee’s role can be limited to reviewing and/or raising occupational health and safety concerns implicated by the Act’s provisions, not the entire reach of the NY Labor Law.