On September 6, 2021, New York State Health Commissioner Howard Zucker designated COVID-19 as a highly contagious communicable disease. This designation sets into motion the operative requirements of the New York’s Health and Essential Rights Act (“HERO Act”). The Act, adopted in May of this year, required most New York employers to establish worksite exposure prevention plans and appoint supervisory employees to oversee the implementation of these plans when it becomes necessary.
What to do ASAP
At the time of the HERO Act’s adoption, COVID-19 was not designated as a highly contagious communicable disease. But now, a number of key provisions are triggered. At this time employers are required to:
- Review their worksite exposure plans and update them if necessary to ensure compliance with latest guidance;
- Finalize and promptly activate the exposure prevention plan;
- Provide a verbal review and training in connection with the exposure prevention plan:
- Such training and review must cover the infectious agent and the disease it can cause; the signs and symptoms of disease, how the disease is spread, all of the elements of the exposure safety plan, the activities and locations at the worksite that may involve exposure to the infectious agent, the use and limitations of exposure controls, as well as employee rights under Labor Law, Section 218-B.
- Provide each employee a copy of the plan in English and in Spanish, to those employees who identify Spanish as their primary language, a copy of which is available here;
- Post a copy of the exposure prevention plan in a conspicuous location at the worksite;
- Ensure that a copy of the exposure prevention plan is easily accessible to employees during all work shifts.
Employers are required to ensure that their exposure prevention plans are actually followed at the worksite and, as a result, must designate certain supervisory employees to implement and ensure compliance with the plans.
Anti-Retaliation Reminder
Of particular import now are the anti-retaliation provisions of the HERO Act. Employers must not retaliate against employees who:
- in good faith report potential violations of the Act or the exposure prevention plans adopted in connection therewith to any state, local or federal authority,
- report an airborne infectious disease concern or seek assistance or intervention with such exposure concerns from their employer or a governmental body, or
- refuse to work where they believe in good faith that such work exposes them, other employees or the public to an unreasonable exposure to an airborne infectious disease, provided an employer is given notice or reasonably should have known of such unreasonable exposure.
An employer is required to maintain records of communications between them and employees regarding potential risk of exposure for two years after the conclusion of the designation from the Commissioner of Health.
Do not hesitate to contact us to seek clarification on specific application to your particular circumstances. This area of the law is changing on a daily basis. Many more changes are sure to be seen in the days and weeks ahead.