New York Has Designated COVID-19 as an Airborne Infectious Disease and Triggered Implementation of Safety Plans Under the NY HERO Act

New York State Governor Hochul announced on Sept. 6, 2021, that the New York commissioner of health has designated COVID-19 as a highly contagious communicable disease under New York state’s HERO Act. Previously, we alerted employers that they had to adopt an Airborne Infectious Disease Exposure Prevention Plan, either by adopting the HERO Act’s Model Plan or by creating their own plan, which must meet or exceed the minimum requirements of the Model Plan. After adopting a plan, employers were required to notify and make their plan available to all employees by the Act’s Sept. 4 deadline.

Now that the New York Department of Health has declared a current airborne disease threat, employers must immediately implement their plans under the Act. Practically, this means employers must implement their plans and take the following actions, among others:

• Daily health screening of employees before they enter a worksite.
• Mandatory mask requirements where physical distancing cannot be maintained.
• Avoid unnecessary gatherings.
• Employers are required to review their plan to determine whether it should be updated, although since plans were completed just a few weeks ago, we expect that such updates may not be necessary.
• Employers should provide a copy of the plan to each employee and ensure that the plan is readily accessible to employees in the workplace and, where possible, online.
• Employers are required to conduct with employees a “verbal review” (which may be conducted remotely where appropriate) of the plan and associated policies; employers should consider whether other training conducted in connection with the COVID-19 pandemic may satisfy this requirement.

Since the state has not made a distinction for compliance based on vaccination status, these measures are applicable to all employees, whether vaccinated or not.

For questions or concerns regarding implementation of the HERO Act, please contact a member of Kramer Levin’s Employment Law Department.