On July 6, 2021, NYS DOL published its Airborne Infectious Disease Exposure Prevention Plan under the New York Health and Essential Rights Act (“HERO”), signed into law on May 5, 2021, Governor Cuomo. In addition to the general model plan, several industry-specific templates were also published, including agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail.
Under HERO, which covers virtually all private sector businesses with worksites in New York State except employees covered by an OSHA temporary or permanent COVID-19 standard, employers must now adopt the applicable model plan or develop an alternative plan with meaningful participation of employees that provides the same level of protection within thirty days, i.e., August 5, 2021. Although the plan needs to be adopted by this date, it does not need to be in “effect” until the New York State Commissioner of Health designates an infectious disease as a “highly contagious communicable disease” that presents a serious risk of harm to the public health. As of today, no such designation has been made.
In addition to adopting such a plan, the law requires, among other things, that it be made available to employees and posted in a visible and prominent location within each worksite.
Unlike OSHA, HERO also provides a private right of action to employees but only if the employer fails to correct alleged violations with 30 days’ notice. A link to the model plan and additional information about HERO is located here.