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Home | BakerHostetler

James Sherer Comments on Client Questions Post-Election in Law.com and The Recorder Articles

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<img decoding="async" loading="lazy" class="alignright wp-image-5167" src="https://www.employmentlawspotlight.com/wp-content/uploads/sites/18/2020/04/COVID-2.jpg" alt="" width="438" height="230" />
On May 5, 2021, Governor Cuomo signed the New York Health and Essential Rights Act (NY HERO Act) into law. As discussed in an <a href="https://www.employmentlawspotlight.com/2021/05/deciphering-the-ny-hero-act-a-new-ny-covid-19-worker-protection-law/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+EmploymentLawSpotlight+%28Employment+Law+Spotlight%29">earlier BakerHostetler post</a>, this law mandates extensive new workplace health and safety protections in response to the COVID-19 pandemic. Pursuant to the NY HERO Act’s directives, the New York State Department of Labor (NYSDOL), in conjunction with the New York State Department of Health (NYSDOH), developed an 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 diseases.
Employers are permitted to either adopt the applicable policy template and prevention plan provided by the NYSDOL or establish an alternative plan that meets or exceeds the standard plan’s minimum requirements. Should an employer elect to create its own airborne infectious disease exposure prevention plan, it must do so with employee participation in nonunionized workplaces and in consultation with collective bargaining representatives where there is a unionized workforce. An employer’s alternative prevention plan is required to incorporate industry-specific hazards and workplace considerations. Whether utilizing a model prevention plan provided by the NYSDOL or a customized prevention plan, employers must adopt said plan within 30 days of July 6, 2021, i.e., by Aug. 5, 2021.
Although the NY HERO Act requires employers to adopt an airborne infectious disease exposure prevention plan, the adopted plan only goes into effect when the commissioner of the NYSDOH designates an airborne infectious disease as a highly contagious communicable disease that presents a serious risk of harm to the public health. Notably, as of the date of this post, no such designation has been made, so prevention plans are not required to be put into effect at this time. 
The standard and model prevention plans are currently available in English and will soon be available in Spanish and other languages. Employers are required to: (i) provide a copy of the adopted airborne infectious disease exposure prevention plan to their employees; (ii) post the plan in a visible and prominent location within each worksite; and (iii) incorporate the prevention plan into their employee handbook. Specifically, employers must provide written copies of the adopted prevention plan to their employees at the following times: (i) the earlier of within 60 days after the NYSDOL publishes the model standard relevant to the employer’s industry or within 30 days after the employer’s adoption of its plan (which, as noted above, must occur by no later than Aug. 5, 2021); (ii) within 15 days of reopening after a period of closure due to airborne infectious disease; and (iv) upon hire to newly hired employees.
The NYSDOL’s standard and industry-specific documents, as well as other helpful resources, are available here:
<ul>
<li><a href="https://dol.ny.gov/airborne-infectious-disease-exposure-prevention-standard">Airborne Infectious Disease Exposure Prevention Standard</a>.</li>
<li><a href="https://dol.ny.gov/model-airborne-infectious-disease-exposure-prevention-plan">Model Airborne Infectious Disease Exposure Prevention Plan</a>.</li>
<li><a href="https://dol.ny.gov/ny-hero-act">NY HERO Act</a> provides industry-specific templates (retail, agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation).</li>
</ul>
In addition to the above requirements regarding health and safety standards and prevention plans, the NY HERO Act also requires employers to allow their employees to create and administer a joint labor-management workplace health and safety committee. These workplace safety committees must be authorized to: (i) raise health and safety concerns, hazards, complaints and violations to the employer, to which the employer must respond; (ii) review and provide feedback concerning issues of occupational health and safety; (iii) review the adoption of any policy in the workplace in response to any health or safety law, ordinance, rule, regulation, executive order or other related directive; (iv) participate in any worksite visit by a governmental entity responsible for enforcing safety and health standards; (v) review any report filed by the employer related to the health and safety of the workplace; and (vi) schedule a meeting during work hours at least quarterly.
Nonsupervisory employees must comprise at least two-thirds of these workplace safety committees and the committees must be co-chaired by both an employer representative and a nonsupervisory employee. The NY HERO Act also provides for up to two hours of paid time for workplace safety committee members to attend such meetings and up to four hours of paid time to participate in committee trainings. These requirements will apply to all employers in New York with 10 or more employees and will become effective Nov. 1, 2021.
New York employers should immediately begin determining how best to comply with the NY HERO Act’s requirements as to applicable standards and prevention plans, the distribution and incorporation of said standards and plans, and the creation of a joint labor-management workplace health and safety committee. Employers should also be mindful that although they are required to establish an airborne infectious disease exposure prevention plan by no later than Aug. 5, 2021, these plans are not required to be put into effect at this time because the NYSDOH commissioner has not designated an airborne infectious disease as a highly contagious communicable disease that presents a serious risk of harm to the public health. Should you have any questions, BakerHostetler is here to help.

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Employment Law Spotlight

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Justin A. Guilfoyle

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