NYS’s New Covid Rule – All Employers Must Comply With It

September 6, 2021

From Governor Hochul:

GOVERNOR KATHY HOCHUL ANNOUNCES DESIGNATION OF COVID-19 AS AN AIRBORNE INFECTIOUS DISEASE UNDER NEW YORK STATE’S HERO ACT 

Designation by State Department of Health Requires All Employers to Implement Workplace Safety Plans to Help Protect Workers from COVID-19

Law Protects Employees from Retaliation for Making a Complaint About Employer’s Failure to Comply with the Law or the Adopted Plan

Governor Kathy Hochul today announced that the commissioner of health has designated COVID-19 a highly contagious communicable disease that presents a serious risk of harm to the public health under New York State’s HERO Act, which requires all employers to implement workplace safety plans in the event of an airborne infectious disease, helping to prevent workplace infections. The NY HERO Act mandates extensive new workplace health and safety protections in response to the COVID-19 pandemic. Under the law, all employers are required to adopt a workplace safety plan, and implement it for all airborne infectious diseases designated by the New York State Department of Health. Employers can adopt a model safety plan as crafted by the New York State Department of Labor, or develop their own safety plan in compliance with HERO Act standards.

“While we continue to increase our vaccination numbers, the fight against the Delta variant is not over, and we have to do everything we can to protect our workers,” Governor Hochul said. “This designation will ensure protections are in place to keep our workers safe and support our efforts to combat the virus and promote health and safety.”

The HERO Act’s purpose is to ensure that businesses are prepared with protocols and resources to protect their employees and the public from the spread of airborne infectious diseases, like COVID’s Delta variant.

Under the HERO Act, the DOL in consultation with the DOH has developed a new Airborne Infectious Disease Exposure Prevention Standard, a Model Airborne Infectious Disease Exposure Prevention Plan, and various industry-specific model plans for the prevention of airborne infectious disease. Additional information and industry-specific templates for employers are available on the DOL’s website.

The plans adopted by employers must address a number of safety measures, including but not limited to: employee health screenings, masking and social distancing requirements, workplace hygiene stations, workplace cleaning protocol, quarantine protocol, and building airflow technology.

Employers are required to distribute their work safety plan to all employees and post it in a visible and prominent location within each worksite.

Additionally, the HERO Act includes anti-retaliation protections for employees which prohibit discrimination or adverse actions taken against an employee for following the requirements of these plans, reporting concerns on the implementation of a plan, or refusing to work.

From The State Labor Dept:

NY HERO ACT
Model Airborne Infectious Disease
Exposure Prevention Plan
The purpose of this plan is to protect employees against exposure and disease during an airborne infectious disease outbreak. This plan goes into effect 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. This plan is subject to any additional or greater requirements arising from a declaration of a state of emergency due to an airborne infectious disease, as well as any applicable federal standards.

Employees should report any questions or concerns with the implementation this plan to the designated contact.
This plan applies to all “employees” as defined by the New York State HERO Act, which means any person providing labor or services for remuneration for a private entity or business within the state, without regard to an individual’s immigration status, and shall include part-time workers, independent contractors, domestic workers, home care and personal care workers, day laborers, farmworkers and other temporary and seasonal workers.

The term also includes individuals working for digital applications or platforms, staffing agencies, contractors or
subcontractors on behalf of the employer at any individual work site, as well as any individual delivering goods or transporting people at, to or from the work site on behalf of the employer, regardless of whether delivery or transport is conducted by an individual or entity that would otherwise be deemed an employer under this chapter. 

The term does not include