COVID-19

COVID-19 Designated ‘Airborne Infectious Disease’ Under New York’s HERO Act

On September 6, 2021, New York Governor Kathy Hochul announced the state health commissioner had formally designated COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health” under the state’s Health and Essential Rights Act (HERO Act). The Act imposes significant occupational health and safety obligations on private-sector employers, including adherence to certain safety standards and the promulgation of an airborne infectious disease prevention plan. Given the designation, read on to understand what steps your company must take to ensure compliance.

Background

On May 5, 2021, former Governor Andrew Cuomo signed the HERO Act into law. On June 14, he signed legislation amending the Act.

On July 6, the New York State Department of Labor (NYSDOL) published an “Airborne Infectious Disease Exposure Prevention Standard,” a general “Model Airborne Infectious Disease Exposure Prevention Plan,” and several industry-specific model prevention plans. The NYSDOL’s guidance then triggered certain employer actions, including the requirements that they:

  • Establish a worksite exposure prevention plan within 30 days after the NYSDOL published the model standards (i.e., no later than August 5); and
  • Provide the plan to their employees within 60 days after the agency published the model standards (i.e., no later than September 4).

Immediate employer action items

Given the health commissioner has now designated COVID-19 as a highly contagious communicable disease because it presents a serious risk of harm to the public health, the HERO Act now requires each employer to:

  • Immediately review the worksite’s exposure prevention plan and update it, if necessary, to ensure 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 plan;
  • Provide the “verbal review” of the plan required by the standard;
  • Give each employee a copy of the plan in English or the individual’s primary language if available;
  • Post a copy of the plan in a visible and prominent location at the workplace (except when the worksite is a vehicle); and
  • Ensure a copy of the plan is accessible to employees during all work shifts. (If you use a plan template prepared by the NYSDOL, you won’t be responsible for errors in translations.)

As long as the designation remains in effect (which appears likely for many months), the HERO Act requires you to ensure the worksite’s exposure prevention plan is “effectively followed” by (1) assigning enforcement responsibilities and making sure adequate enforcement takes place, (2) monitoring and maintaining exposure controls, and (3) regularly checking for updated information and guidance from the New York State Department of Health and the U.S. Centers for Disease Control and Prevention (CDC) concerning the airborne infectious disease.

In addition, you must designate one or more supervisory employees to enforce compliance with the exposure prevention plan, the standard, and any other related federal, state, or local guidance. No individual who isn’t a supervisory employee, however, should have responsibility for overseeing compliance with the requirements.

Other issues

Workplace safety committees. Effective November 1, 2021, employers with 10 or more employees may be required to establish a joint labor-management workplace safety committee to address workplace policies specifically related to occupational safety and health. Unless the HERO Act provision is enjoined to the extent it preempts the National Labor Relations Act (NLRA), you should be prepared to address COVID-19-related policies and practices with the committee.

Employee lawsuits. While the HERO Act amendments limit employees’ right to file private lawsuits over employer compliance, they may still pursue litigation if (1) they provide a 30-day notice of an alleged violation and (2) the employer fails to correct it. The 30-day notice may be excused if the employee pleads the employer acted in bad faith and has demonstrated an unwillingness to address the alleged infraction.

The right to sue is a huge exception to the litigation bar provided by the state’s workers’ compensation law, which immunizes employers from most employee suits arising out of workplace safety issues. As a result, beware of employee notices of alleged violations, and be prepared to address them and act within 30 days.

No retaliation. The HERO Act broadly prohibits retaliation against employees who (1) exercise their rights under the Act, (2) report violations, (3) report or seek assistance for an airborne exposure concern, or (4) refuse to work when they reasonably believe they (or other workers or the public) will face an unreasonable risk of exposure to an airborne infectious disease, provided they gave notice about the questionable working conditions and the employer failed to address them. Consequently, beware of the new “protected activities” before taking an adverse employment action against an employee.

Takeaways

Unfortunately, the deadlines to develop and share the HERO Act exposure prevention safety plan have passed. If you haven’t done so already, you should review the NYSDOL website and take care of the requirement ASAP. Of course, make sure your company can actually comply with the plan.

Now that COVID-19 has been designated as a highly contagious communicable disease, you should update, finalize, and activate the exposure prevention plan. Conduct the verbal review and provide a copy of the plan to employees as set forth above. Ensure the plan is “effectively followed.” Assign enforcement responsibilities, monitor and maintain exposure controls, and regularly check for and update the plan with current information and guidance.

Finally, beware of the looming prospect of participating in the joint workplace safety committee process, the risk of litigation for HERO Act violations, and possible retaliation claims. Consult with employment counsel on how to navigate the dangerous waters.

Paul J. Sweeney is an attorney with Coughlin & Gerhart, LLP in Binghamton, New York. You can reach him at psweeney@cglawoffices.com or 607-723-9511. This article was originally published in the New York Employment Law Letter.