By Tracey I. Levy

The New York State Department of Labor yesterday posted on its website an Airborne Infectious Disease Exposure Prevention Standard, a model Airborne Infectious Disease Exposure Prevention Plan, and industry specific templates (which can be accessed on a dedicated webpage) to implement the HERO Act.  The industry-specific templates cover agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail.

As we discussed in our prior blog article, the HERO Act requires all New York State employers to adopt airborne infectious disease exposure prevention plans that meet or exceed the state’s published standards.  Employers now have 29 more days in which to draft their own safety plans, and an additional 30 days to distribute their plans to current employees.  All plans thus need to be drafted and distributed by Labor Day 2021.

The model plan includes minimum controls with which we have all become very familiar over the past 15 months, including stay at home policies for those exhibiting symptoms, health screenings, face coverings, physical distancing, hand hygiene, cleaning and disinfection, “respiratory etiquette,” and special accommodations for those at greater risk.  Additional controls may be required in situations that present higher risk of exposure.  Significantly, while the planning must be done and documented now, these controls need only be put into place in the event that the state Commissioner of Health designates an airborne infectious disease as highly contagious presenting a serious risk of harm to the public health. Presently there is no such designation in effect in New York (even for COVID-19).

The model plan further includes provisions on:

• training and information dissemination during a designated outbreak;
• plan evaluations;
• acknowledgment that all controls to be implemented have been obtained, properly stored and maintained; and
• a complaint reporting process and reassurances against retaliation for reporting concerns.

Employers that choose to adopt the state’s model plan should note that the plan requires customized information to be specified in certain sections – you cannot simply download the document and distribute it as is.  Alternatively, employers may want to use the return-to-work plans that they previously developed under the New York Forward program following the COVID-19 shutdown as a starting point in developing their HERO Act plans, but this can only be a starting point and employers should confirm that their plans cover all the elements incorporated in the model HERO Act plan.