Update – New York to Revise HERO Airborne Infectious Disease Exposure Prevention Plan Template | Locke Lord LLP
On September 10, 2021, we alerted New York employers in a QuickStudy that COVID-19 was officially designated as an “airborne infectious disease” under the New York Health and Essential Rights Act (commonly known as the “HERO Act “). The designation, which has since been extended to Oct. 31, 2021, has forced nearly all New York employers to take immediate action to implement their previously created or adopted workplace safety plans. Our previous update also included a link to the New York Department of Labor’s Airborne Infectious Disease Exposure Prevention Model Plan (the “Model Plan”) and various industry-specific model plans, which the Department New York Labor (“DOL”) published for employers. to consider and / or to adopt.
The DOL recently released updates to the model plan regarding face coverings and physical distancing in the workplace. Regarding the DOL’s attempt to clarify when masks are required in the workplace, the model plan review now provides for the following two scenarios:
- [APPLICABLE FOR MOST WORKPLACES] Employees will wear appropriate face coverings as directed by the state Department of Health or the Centers for Disease Control and Prevention, as applicable.
- [APPLICABLE FOR WORKPLACES where all individuals on premises, including but not limited to employees, are fully vaccinated – defined as having completed a federally authorized or approved vaccination series for an airborne infectious disease designated as a highly contagious communicable disease that presents a serious risk of harm to the public health (as is currently the case for COVID-19, pursuant to the Commissioner of Health’s designation)] Appropriate face coverings are recommended, but not required, in accordance with applicable guidelines from the State Department of Health and the Centers for Disease Control and Prevention, effective September 16, 2021.
Current DOH and CDC guidelines for face coverings are subject to change, so it is important that employers regularly check for any changes to these. Since few employers have all employees and individuals on-site as fully immunized, these employers are advised to use the first of the two scenarios mentioned above.
Regarding the revised DOL guidelines for social distancing in the workplace, the model plan removes references to “avoid unnecessary gatherings” and “use a face covering when physical distancing cannot be maintained”. Instead, its section on social distancing now reads: “Physical distancing will be used to the extent possible, as directed by the State Department of Health or the Centers for Disease Control and Prevention, as applicable. ” However, the model plan still requires employers to list the health and safety controls it will implement in circumstances where distancing cannot be maintained.
Employers in New York State who have already adopted the model plan or drafted their own should review and revise their workplace safety plan based on the recent revisions mentioned above.
Employers with ten or more employees should also keep in mind section 2 of the HERO Act, which comes into effect on November 1, 2021 and requires those employers to allow employees to establish a joint employer-employee health committee. and occupational safety allowed to improve health. and safety issues and assess occupational health and safety policies. The DOL plans to provide further guidance for Section 2 of the Heroes Act before the effective date of November 1, 2021.
Additional information relating to the HERO Act can be found in the recently published FAQs from DOL, available on their website.