New York’s Health and Essential Rights Act (NY HERO Act) was signed into law in early May 2021 in response to the COVID-19 pandemic. The law required extensive new workplace health and safety measures in order to protect employees from exposure or illness during a future airborne infectious disease outbreak. When an airborne infectious disease is designated by the state’s Commissioner of Health as highly contagious and a serious risk to public health, the act requires all employers to implement airborne infectious disease exposure prevention plans.
This is exactly what happened on September 6th when New York Governor Kathy Hochul declared COVID-19 an airborne infectious disease. This designation now requires all New York state employers to implement workplace safety plans. The NYS Department of Labor along with the NYS Department of Health have developed a prevention standard and several industry-specific model plans which employers can choose to adopt. Alternatively, employers can create their own plan that meets or exceeds the prevention standard required.
Since the Governor’s announcement, we have received many questions regarding this law and its requirements. That’s why we’re sharing this NY HERO Act summary, including mandatory actions for employers, continuing compliance obligations, and a few of your frequently asked questions.
Please note, the information and materials provided in this Q&A do not constitute legal or other professional advice. Ethan Allen HR Services is not responsible for any claims, losses, costs, or liabilities resulting from your use of this information. For specific questions or concerns, you should consult your lawyer, professional advisor, or Ethan Allen HR directly.
The NY HERO Act Summary
Requirements for Employers
Now that the law has been activated by the designation of COVID-19 as a highly contagious communicable disease, here’s what New York employers must do:
- Immediately review and update the worksite’s exposure prevention plan and, if necessary, ensure that it incorporates current information, guidance, and mandatory requirements issued by federal, state, or local governments related to the infectious agent of concern.
- Provide a “verbal review” of the exposure prevention plan for their employees.
- Provide each employee with a copy of the exposure prevention plan in English or in the language identified as the primary language of such employees.
- Post the exposure prevention plan at the worksite and make sure it is accessible to employees during all work shifts.
Ongoing Employer Obligations
The designation of COVID-19 as a highly contagious disease was originally set to expire on September 30th, but was extended by the NY Commissioner of Health. This revised designation requires employers to continue to implement their airborne infectious disease exposure prevention plans under the HERO Act through October 31, 2021. The designation will be reviewed at that time and a decision made on whether to continue the designation based on the levels of COVID transmission.
In the meantime, employers must ensure their prevention plans are being effectively followed by taking steps including:
- Assign at least one supervisory employee to enforce compliance with the plan.
- Monitor and maintain exposure controls.
- Check regularly for updates from the NYS Department of Health and Centers for Disease Control, and update the prevention plan to address changes in control measures.
Common Employer Questions
Is there a grace period or deadline for activation of our HERO Act plan?
Neither the legislation nor any of the available guidance contains a grace period or deadline for employers to “activate” their HERO Act plans. As a best practice, it is recommended that employers take this step as soon as possible and consider the particular facts and circumstances.
What if we do not currently have a HERO Act plan in place?
Covered private sector employers were required to have adopted their exposure prevention plans by Aug. 5, 2021, and to have conducted a verbal review (including distribution of a written copy) of those plans with employees by Sept. 4, 2021.
If these steps have not already been completed, then your business or organization should immediately work to develop, adopt, disseminate, and review a compliant HERO Act plan with employees.
New York previously published an Airborne Infectious Disease Exposure Prevention Standard under the HERO Act, as well as general and industry-specific Model Airborne Infectious Disease Exposure Prevention Plans, for reference purposes.
What happens if I make changes to a “model” HERO Act plan?
According to the relevant statute and state guidance, employers are allowed to adopt “alternative” prevention plans under the HERO Act, so long as these plans are: (i) tailored and specific to the hazards in the respective industry and worksites of the employer; and (ii) equal or exceed the minimum standards provided by the state’s Model Airborne Infectious Disease Exposure Prevention Plan.
If adopting an “alternate” plan, non-unionized employers are required to have “meaningful participation” from employees, as part of the process. Employers with represented workers must go even further and obtain union approval.
Notably, New York regulators have indicated that not all changes to the “model” plans will trigger the above HERO Act obligations. For example, modifications to the “Controls” or “Advanced Controls” sections of New York’s model plans will not necessarily result in creation of an “alternate” plan. It also stands to reason that other non-material revisions to the model plans, such as removing state logos and adding information to open fields, likewise will not trigger the HERO Act’s employee “participation” or union “approval” requirements.
What does “verbal review” mean when it comes to our employee communications about the activated HERO Act plan?
Unfortunately, the underlying legislation does not define this term. The word “verbal” is generally defined simply as “using words.” In turn, there is a question of whether the HERO Act review needs to be conducted through some type of oral communication to workers. An argument can be made that written communications about an employer’s HERO Act plan will suffice.
In general, this verbal review is akin to regular employee training, and, among other things, should convey the applicable workplace requirements (screening, masking, social distancing, etc.), as well as the resources and protections available to employees.
Are we required to publish the entire HERO Act plan in our employee handbook?
A plain reading of the HERO Act seems to require that the entire plan be published in your employee handbook. State guidance likewise indicates this is the case.
For Ethan Allen HR Services clients, once you have finalized your prevention plan, Ethan Allen can assist you with posting the plan to your employees’ online portal. This will satisfy the policy distribution requirement and provide acknowledgement of receipt.
Do we have to screen employees now that our HERO Act plan is activated? What about visitors?
The HERO Act requires that employers screen employees, in accordance with applicable DOH or CDC guidance. However, there is no such guidance currently in place.
In the absence of such authority, one potential compliance approach for employers to consider is following the same screening procedures that were in place under the prior “NY Forward” requirements. This means issuing and reviewing daily employee queries about whether they have experienced any COVID-19 symptoms or been exposed to any infected individuals.
The screening of visitors is not required under the HERO Act, but employers may wish to undertake such precautions depending on the particular facts and circumstances, and if necessary to comport with any other local, state, or federal requirements.
What about employee masking under our activated HERO Act plan?
The HERO Act requires that employers establish requirements for the use of face coverings in accordance with applicable DOH or CDC guidance.
Currently, New York has adopted the CDC’s masking recommendations, and New York employers are advised to have all non-vaccinated employees wear appropriate masks while indoors. Additionally, the CDC advises that even vaccinated persons should wear masks if they work in areas with substantial or high COVID-19 transmission rates. Presently, the CDC has designated all of New York state as a substantial or high transmission area.
Is social distancing required under our activated HERO Act plan, even for those who are vaccinated?
The HERO Act specifies that employers must maintain “effective social distancing” requirements. The state’s model standard further specifies that employers should maintain, when possible, at least six feet of physical distance between workers or as otherwise specified by the state or CDC.
What are we supposed to do with employees who are working remotely?
The HERO Act’s definition of a “worksite” does not include locations where employees are telecommuting or teleworking unless the employer has the ability to exercise control over the area. Presumably, these exempt locations include personal residences and other private locations where employees are performing remote work. However, state officials have advised that employer-owned vehicles and employer-provided housing would constitute a “worksite” under the HERO Act.
Does the HERO Act only apply to full-time employees?
No, the HERO Act applies to all employees, including non-employee contingent workers, such as independent contractors, domestic workers, home care and personal care workers, day laborers, farm workers, and other temporary and seasonal workers.
However, different requirements may apply to these contingent workers under the HERO Act. For example, according to the state, employers are not required to conduct a “verbal review” of their HERO Act plans with contingent workers from staffing agencies, with contractors and subcontractors, or with individuals delivering goods or transporting people to and from the worksite.
I have multiple work locations. What does activation under the HERO Act require?
If employers have different worksites and environments, it may be prudent or necessary to include differing infection control measures, or even separate plans for multiple worksites. On this point, New York regulators have advised:
“Employers should select the most appropriate template and customize the controls section to add appropriate controls for the industry or worksite(s) by assessing specific employee or contractor functions and unique circumstances and conditions of particular worksites to determine the appropriate template to utilize.”
What are the penalties for non-compliance with the HERO Act?
New York regulators have advised that non-compliant employers may be subject to daily penalties of $50 and violations ranging up to $10,000 for failing to abide by the requirements of the HERO Act. There are increased penalties for subsequent violations that occur within a six-year period. The HERO Act also permits employees to bring a private cause action under certain circumstances.
Looking for more information about the NY HERO Act? Check out the New York Department of Labor’s HERO Act FAQ or reach out the HR Experts at Ethan Allen.
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