The Department of Labor Issues Standards Governing the Implementation of the NY HERO Act and Model Plans
As addressed in our prior client alert, the NY HERO Act was signed by Governor Cuomo in May of 2021 and requires employers to create a written plan to prevent airborne infectious diseases in the workplace. This written plan must be utilized when an airborne infectious disease is designated by the New York State Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health. On July 7, 2021, the Department of Labor (“DOL”) published standards addressing the requirements imposed by the NY HERO Act, a general Model Airborne Infectious Disease Exposure Prevention Plan (the “Model Plan”), and industry-specific model plans. Employers must adopt the Model Plan or develop an alternative plan by August 6, 2021. Employers then have 30 days after adoption to distribute the plan to current employees. Importantly, at this time, the Commissioner of Health has not designated COVID as an “airborne infectious disease” as would be required by the Airborne Infectious Disease Exposure Prevention Standard (the “Standard”), so the steps in the Exposure Prevention Plans are not required to be implemented. The below summarizes the key points from the Standard and the Model Plan.
Airborne Infectious Disease Exposure Prevention Standard
The Standard echoes much of what was detailed in the law, including the requirement that employers either adopt the Model Plan published by the DOL or create their own alternative plan, which incorporates the minimum standards of the DOL model plans. If an employer wants to adopt an alternative plan and there is a collective bargaining agreement in place, their alternative plan must be adopted pursuant to an agreement with the collective bargaining representative. If there is no collective bargaining representative, the plan must be adopted with the meaningful participation of employees for all aspects of the plan, and such plan shall be tailored and specific to the hazards in the particular industry and worksites of the employer. The Standard does not define what “meaningful participation” means under the law.
The Standard does, however, clarify the scope of its application. As noted above, the Standard only applies to airborne infectious agents or diseases designated by the Commissioner of Health as “a highly contagious communicable disease that presents a serious risk of harm to the public health.” It does not apply to “seasonal or endemic infectious agent[s] or disease[s]”, like the flu, that are not so-designated. The Standard does not apply to:
employees or independent contractors of the state, any political subdivision of the state, a public authority, or any other governmental agency or instrumentality; or
any employee within the coverage of a temporary or permanent standard adopted by the Occupational Safety and Health Administration setting forth applicable standards regarding COVID-19 and/or airborne infectious agents and diseases.
Notably, employers will still be required to abide by other applicable state or federal guidance related to airborne infectious diseases within the workplace.
At a minimum, the Standard requires employers to address the following controls in their written plan: health screening, face coverings, physical distancing, hand hygiene facilities, cleaning and disinfection, and personal protective equipment (“PPE”). The requirements outlined by the Standard for these controls are similar to the requirements previously imposed by NY Forward guidance. However, employers should be aware that the Standard’s requirements are more nuanced, especially those governing hand hygiene facilities, cleaning and disinfection, and PPE. Employers will need to pay close attention to the Standard for those categories.
Dissemination of the Plan
The Standard requires the employer provide a verbal review of employer policies related to the HERO Act and related requirements, the employee’s rights under those documents, and the employer’s Exposure Prevention Plan, including the circumstances of when the plan will be activated and where the plan can be found. During an outbreak, the verbal review must take place in a manner most suitable for the prevention of an airborne infectious disease: for example, in person in a well-ventilated environment with appropriate face masks or personal protective equipment or via audio or video conference technology.
Employers must review and update their Exposure Prevention Plan whenever necessary to reflect new or modified procedures that affect workplace exposure and to ensure the plan reflects new or modified employee assignments. Employers must also make this plan available, upon request, to all employees, employee representatives, collective bargaining representatives, independent contractors, the DOL, and the State Department of Health (“DOH”). Though not addressed in the Standard, employers should remember that they are also required to provide the adopted plan to all employees within 30 days after adoption of the plan, within 15 days after reopening, and to a new employee upon hire. Businesses permitted to operate as of the effective date of the amendment to the HERO Act must provide the plan to all employees 60 days after the DOL’s publication of the Standard. Since September 5, is a Sunday and the following day is Labor Day, this deadline may effectively be September 7, 2021.
The employer must also post a copy of the Exposure Prevention Plan in a visible and prominent location at the worksite (except when the worksite is a vehicle), ensure that a copy of the Exposure Prevention Plan is accessible to employees during all work shifts, and include a copy of the Exposure Prevention Plan in the employee handbook.
Implementation of the Exposure Prevention Plan During an Outbreak
Once 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 must take the specific steps identified in the Standard to review, update, activate, and publicize the plan.
While the designation is in effect, employers must ensure that the plan is effectively followed by implementing practices identified in the Standard to enforce, monitor, and update the Exposure Prevention Plan, including designating one or more supervisory employees to enforce compliance with the plan, the Standard and applicable guidance and law.
Anti-Retaliation
The Standard also echoes the anti-retaliation provisions of the HERO Act, which are discussed in our previous client alert. Importantly, the Standard makes clear that these provisions must be explicitly included in the written Exposure Prevention Plan. The Standard also introduces new requirements concerning employee notification of violations and employer document preservation obligations. Employees may provide notice of a violation of the Exposure Prevention Plan or the HERO Act verbally or in writing, in any format, including electronic communications. Employers must also maintain any records that exist between the employer and employee regarding a potential risk of exposure, in any format, for two years after the conclusion of the designation of a high-risk disease.
Model Airborne Infectious Disease Exposure Prevention Plan
The DOL has promulgated a general Model Plan that applies to many workforces. The highlights of that plan are discussed below. However, the DOL has also issued a number of industry-specific plans focused on agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail. Employers in those industries should review the industry-specific guidance for additional information.
In addition to setting forth further details on the information required by the Standard, the Model Plan includes various provisions that are not explicitly provided for in the Standard, which employers should be aware of especially if they plan to draft an alternative plan. It also explicitly details how employers should handle an actual or suspected case of disease in the workplace: by requiring the sick individual to wear a face covering, leave the workplace, and to follow applicable DOH and CDC guidance.
Minimum Controls
The Model Plan begins by detailing certain “minimum controls” that must be in place during an outbreak, and provides further detail on some of the items laid out in the Standard: health screening, face coverings, physical distancing, and hand hygiene. Four additional controls are also outlined: general awareness, a stay-at-home policy, respiratory etiquette, and special accommodations for individuals with added risk factors, which instructs employees to speak to Human Resources if they require accommodations due to added risk factors such as age, underlying health conditions, or other factors increasing their risk of severe illness if infected. This provision is notable as age is generally not a basis for providing a reasonable accommodation in the workplace under federal, state, or local law.
Advanced Controls
The Model Plan also contains a number of “advanced controls” that employers may need to implement depending on the situation, when the minimum controls alone will not provide sufficient protection for their employees. These advanced controls may include:
Considering the temporary suspension or elimination of risky activities where adequate controls could not provide sufficient protection for employees. “Risky activities” are not defined in the Model Plan;
Considering appropriate controls to contain and/or remove the infectious agent, prevent the agent from being spread, or isolate the worker from the infectious agent (e.g., ventilation; installation of automatic disinfection systems or cleanable barriers; modified layouts to avoid points or areas where employees may congregate);
Considering implementing administrative controls, policies, and rules to prevent exposure. Examples include: increasing the space between workers; training; identifying and prioritizing job functions that are essential for continuous operations; limiting the use of shared workstations; posting signs reminding employees of respiratory etiquette, masks, handwashing; and rearranging traffic flow to allow for one-way walking paths (please see the Model Plan for further examples); and
Providing PPE such as eye protection, face shields, respirators and gloves based on a hazard assessment for the workplace.
The Model Plan notes that the employer is expected to obtain, maintain, and properly store the specific controls they have selected so that they are ready in event of an outbreak. Employers should take this requirement into account when setting forth the controls expected to be implemented.
Housekeeping Procedures
Employers should be aware that the Model Plan notes that routine procedures related to housekeeping may need to be adjusted and additional cleaning and disinfecting may be required in the event of an outbreak, particularly with regard to high-touch surfaces. Further, the Model Plan provides that as the housekeeping staff may be at an increased risk of infection, alternative methods of cleaning and/or increased levels of protection may be needed for those employees and that best practice would be to have those employees wear respiratory protection.
Training and Information During a Designated Outbreak
The Model Plan also includes a section on training procedures for when the Exposure Prevention Plan is active. These procedures detail that all personnel will receive training during working hours, at no cost, on all elements of the Exposure Prevention Plan and set forth specific areas that should be covered and how the training should be provided.
NY State Face Covering Requirements
In addition to the HERO Act guidance documents, and specific to the COVID-19 pandemic, on June 23, 2021, the New York State Department of Health issued an emergency regulation requiring individuals who are not fully vaccinated to wear face coverings in workplaces when in direct contact with customers or members of the public and when unable to maintain six feet of distance from others. An individual is considered fully vaccinated under the regulations when two or more weeks have passed since the individual received the final dose of any COVID-19 vaccine approved or authorized for emergency use by the FDA.
Further, employers are still required to provide, at their expense, appropriate face coverings for employees. Customers, visitors, and other parties who are not fully vaccinated and who enter the workplace, are over the age of two, and are able to medically tolerate a face-covering must cover their nose and mouth with a mask or face-covering when they are in a public place and unable to maintain six-feet of distance. There are additional requirements for setting such as food service establishments, schools, large event venues, and health care settings. Violations of this rule are subject to a maximum fine of $1,000 per violation.
Takeaways
Given the tight timeline for adoption of an airborne infectious diseases prevention plan, employers must:
Decide whether they intend to adopt the Model Plan (or industry-specific model plan) or create their own alternative plan.
If an employer choses to create an alternative plan, the employer should ensure that the alternative plan meets or exceeds the standards detailed by the DOL and must involve their employees, or the relevant collective bargaining agent, in the development of the alternative plan. Employers should consult with counsel to determine the appropriate path forward.
Note that the employer’s plan must be adopted or developed by August 6, 2021.
Provide a verbal review of employer policies related to the HERO Act and related requirements, the employee’s rights under those documents, and the employer’s Exposure Prevention Plan.
Provide the adopted plan to all employees within 30 days after adoption of the plan, within 15 days after reopening, and to a new employee upon hire. Businesses permitted to operate as of the effective date of the amendment to the HERO Act must provide the plan to all employees by September 7, 2021.
Post a copy of the Exposure Prevention Plan in a visible and prominent location at the worksite, ensure that a copy of the Exposure Prevention Plan is accessible to employees during all work shifts, and include a copy of the Exposure Prevention Plan in the employee handbook.
Plan for a joint employee-management workplace safety committee, as employers must allow employees to form such committees starting on November 1, 2021.
The DOL will be sharing more details about this law in the near future and the firm will continue to monitor these developments and provide employers with updates. Employers who have questions about drafting and/or implementing an Exposure Prevention Plan should contact Caroline Secola at csecola@fglawllc.com or any other attorney at the Firm.
DISCLAIMER: This alert is provided to clients and friends of the firm for informational purposes only and the distribution of this alert is not intended to, and does not, establish an attorney-client relationship. This alert also does not provide or offer legal advice or opinions on any specific factual situations or matters. This communication may be considered Attorney Advertising. Prior results do not guarantee a similar outcome.