All New York HERO Act Safety Plans Must Be Placed Into Effect: New Guidance Issued

Health Screening, Physical Distancing, and Mask Wearing to Be Implemented

[UPDATE, Dec. 16, 2021: HERO Act Requirements Extended Again]

On September 6, 2021, New York Governor Kathy Hochul announced that the New York State Department of Health designated COVID-19 a serious public health risk under the NY HERO Act (“HERO Act”). As we have previously reported, the HERO Act, which was signed into law on June 14, 2021, imposes significant workplace health and safety obligations on covered New York employers,[1] including mandating that they adopt airborne infectious disease exposure prevention plans (“Safety Plans”). Due to this designation, those Safety Plans must now go into effect. And, on September 9, 2021, the New York State Department of Labor (“NYSDOL”) released a new “Informat i on & FAQs” guidance document in connection with this requirement.

Covered New York employers were required to adopt Safety Plans by August 5, 2021, and to distribute, post, and add them to employee handbooks by September 4, 2021. However, those Safety Plans did not have to be put in effect unless and until an airborne infectious disease was officially designated as a highly contagious communicable disease that presents a serious risk of harm to the public health. Now that COVID-19 has been so designated, with the designation to be in effect until at least September 30, according to State Health Commissioner Dr. Howard Zucker, employers’ HERO Act Safety Plans must be implemented.

Employers’ plans must be at least as comprehensive as the model plans provided as guidance by the NYSDOL. Forms and guidance are available on the HERO Act website, including the Airborne Infectious Disease Exposure Prevention Standard (“NY Standard”), a general model safety plan, and 11 industry-specific model safety plans. The NYSDOL FAQs note that simple modifications to the Controls or Advanced Controls portions of the State’s templates do not necessarily constitute creation of an “Alternative Plan” necessitating employee review, but that more substantive alterations, beyond amendments to the open fields in the templates, would require meaningful participation by employees under the statute.

Review and Revision of Safety Plans

The timeline for implementation has not been specified, but the NY Standard requires that employers must “finalize and promptly activate” their Safety Plans. Employers should immediately review their Safety Plan and document any changes in the “Plan Revision History” section of the Safety Plan. As guidance is released, any additional updates or revisions should be similarly documented.

Most Notable Measures That Must Be Immediately Implemented

While Safety Plans require a certain level of customization in the specific safety controls and measures an employer will implement, the model plans include certain mandatory elements, including the following:

Exposure controls, such as:
- a “stay at home” policy for employees with symptoms,
- health screening of employees at the beginning of their shifts,
- wearing of face coverings “to the greatest extent possible” and where recommended by the New York State Department of Health (“NYSDOH”) and Centers for Disease Control and Prevention (“CDC”),[2] and
- physical distancing
  [UPDATE: Please see the Epstein Becker Green blog post titled “New York State Updates General Model Form of HERO Act Safety Plan,” which discusses changes made on September 23, 2021, to the general model safety plan regarding face coverings and physical distancing.]
Engineering controls, such as increased mechanical and natural ventilation
Administrative controls, such as:
- employee training,
- limited use of shared workstations, and
- additional breaks for handwashing and cleaning
Use of required personal protective equipment (“PPE”)

Notably absent from both the NY Standard and model plans is any requirement that employers engage in contact tracing in the event of positive COVID-19 tests. Nonetheless, employers should consider whether including contact tracing protocols in their Safety Plans is practicable.

Covered New York employers must provide every employee with a copy of their Safety Plan in English or in the language identified as the primary language of an employee, if model plans have been made available in that language. Supervisory employee(s) who are designated to ensure compliance must begin overseeing compliance with the requirements of the Safety Plans.

Training and Verbal Review

The model safety plans also specify that employers must now conduct training and a verbal review of employer policies and employee rights under the HERO Act. Personnel must be trained on the following topics:

COVID-19 and the disease(s) it can cause
The signs and symptoms of COVID-19
How COVID-19 can spread
An explanation of the employer’s Safety Plan
The activities and locations at the employer’s worksite that may involve exposure to COVID-19
The use and limitations of exposure controls
A review of the NY Standard released by the NYSDOL, including employee rights provided under the HERO Act.

Training must be provided at no cost to employees and must occur during work hours, if possible. If training during work hours is not possible, employees must be compensated for the training time with pay or time off. The training must be provided in content and vocabulary consistent with employees’ educational level, literacy, and preferred language, and must be provided either in person or through telephonic, electronic, or similar means.

Penalties for Noncompliance

The penalties under the HERO Act include civil penalties of $50 per day for failure to adopt or implement an appropriate Safety Plan and a fine of $1,000 to $10,000 for failure to comply with an adopted and implemented Safety Plan. Employees may also bring a private right of action seeking injunctive relief against employers alleged to have violated their Safety Plan, although advance notice to the employer is required. A court may enjoin the employer’s conduct and order all appropriate relief, including costs and reasonable attorneys’ fees to the employee.

What New York Employers Should Do Now

We expect that additional guidance will be forthcoming, but in the meantime, covered New York employers should immediately put the safety controls and measures specified in their adopted Safety Plans into effect, among the other requirements described above. Employers must fulfill all of the following:

Review and revise their Safety Plans as needed. Employers may rely on the model plans provided by NYSDOL or may use their own, provided that plans developed in-house are created with “meaningful participation of employees” as to “all aspects” of the plan(s). Certain minor alterations to the model plans may be made without employee review.
Conduct health screenings for symptoms of COVID-19 at the beginning of each work shift.
Provide a copy of the implemented Safety Plan to all New York employees.
Confirm that the physical distancing, masking, and other engineering and administrative controls are implemented.
Comply with the heightened cleaning, disinfecting, and housekeeping procedures included in their Safety Plan.
Provide appropriate PPE to employees.
Conduct the training and a verbal review of the Safety Plan, including employer policies and employee rights under the HERO Act.
Be prepared. The HERO Act requires employers with 10 or more employees that don’t already have a joint labor-management workplace safety committee to permit workers to establish and administer one, consistent with the provisions of the HERO Act, as amended, effective November 1, 2021.

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For more information about this Insight, please contact:

Susan Gross Sholinsky New York 212-351-4789 sgross@ebglaw.com	Steven M. Swirsky New York 212-351-4640 sswirsky@ebglaw.com
Robert J. O’Hara New York 212-351-3708 rohara@ebglaw.com	Nancy Gunzenhauser Popper New York 212-351-3758 npopper@ebglaw.com

Christopher Shur, a Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this Insight.

ENDNOTES

[1] The HERO Act applies to all private employers with worksites in New York State, with an exception carved out for any employees covered by a temporary or permanent standard adopted by the U.S. Occupational Safety and Health Administration (such as health care workers protected under the Emergency Temporary Standard, as explained here). Please note that pursuant to President Biden’s recent COVID-19 vaccination directives, more Emergency Temporary Standards may be forthcoming, as explained here.

[2] As of this writing, the NYSDOH adopted the CDC’s May 2021 guidance to require face coverings for unvaccinated individuals. The CDC has since recommended that, in addition to unvaccinated individuals, vaccinated individuals in an area of substantial or high transmission also wear a mask when in a public indoor space (it is not clear if that is intended to cover private workplaces).