NY HERO Act Update: DOL Releases Industry Specific Disease Prevention Plans | Seyfarth Shaw LLP
The New York Department of Labor quietly released a general model and industry-specific airborne disease prevention protocols under the NY HERO Act. Companies should consult the model protocols and consider adopting the version relevant to their industry or creating their own plan that meets or exceeds legal requirements.
As stated previously (here and here), the HERO Act required DOL to publish industry-specific disease prevention protocol templates. On the night of July 6, 2021, the DOL published the generally applicable pattern protocol required as well as specific pattern protocols for the following industries: Agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transport, and retail.
Employers are now required to respect the following statutory deadlines:
- August 5, 2021: Within 30 days of the publication of the DOL, employers must either adopt the protocol model applicable to their industry or create their own airborne disease prevention plan that meets or exceeds the minimum requirements of the law.
- September 4, 2021: Within 60 days of the publication of the DOL (i.e. September 4), employers must provide their employees with adopted or equally stringent safety protocols. (September 4 is a Saturday and the following day of the week, Monday September 6, is Labor Day. Thus, the likely effective date of this requirement is Tuesday September 7.)
Model protocols generally follow industry-specific guidelines implemented to deal with the COVID-19 pandemic in New York City, that were recently abandoned. They include specific minimum exposure controls for use during an airborne communicable disease outbreak, including employee health exams, face covers, hand hygiene, social distancing, and cleaning and disinfection. of the workplace. The protocols also provide a list of more stringent measures to take during an outbreak, when “minimal controls alone will not provide sufficient protection to employees”, including the temporary suspension of “risky activities” technical, various administrative controls and PPE requirements.
The protocols also set out anti-retaliation provisions to prevent retaliation against employees who raise concerns about employers’ workplace health measures.
The DOL stressed that while employers must now adopt a plan within the legal timeframe, there is currently no obligation to Activate such plans, as the health commissioner has not designated any particular airborne infectious disease (including COVID-19) as a highly contagious communicable disease that poses a serious risk to harm public health.
The DOL further said it “will share more details on this law in the near future” and reminds employers to check its website for further updates. He added that he will be producing Spanish versions of the model protocols “in the coming days”.
With regard to the occupational safety committees envisaged by the law, the DOL has not yet issued any guidelines. As a reminder, employers must begin allowing employees to form such committees as of November 1, 2021. Committees must be allowed to raise occupational health and safety concerns, review employer policies. relating to occupational health and safety matters, to participate in government site visits relating to occupational health and safety standards and to attend committee meetings and training related to occupational health and safety standards.
Employers should immediately begin working with a lawyer to ensure compliance with the provisions of the HERO Act. Employers with a unionized workforce must determine whether and how the requirements of the Act will complement or conflict with their obligations under their respective collective agreements.
Seyfarth will continue to monitor developments in this space and provide updates as they become available.