Employer Obligations Under New York's HERO Act Are Triggered by Declaration That COVID-19 Is an Airborne Infectious Disease

As detailed in our prior advisories, New York's HERO Act requires all employers to develop an airborne infectious disease prevention plan, which is to be activated in the event that the New York State Department of Health (NYSDOH) declares an infectious disease outbreak. On September 6, 2021, the NYSDOH made that designation in light of the continued community spread of COVID-19.

To satisfy the HERO Act's prevention plan requirements, an employer had to either adapt the template relevant to the employer's industry or establish an alternative plan that meets or exceeds the minimum standards set forth in regulations promulgated by the New York State Department of Labor (NYSDOL). If the latter option was chosen, the plan had to be developed with the "meaningful participation" of employees where no collective bargaining representatives exist or, in a unionized workplace, in collaboration with representatives of the bargaining unit. Employers were required to distribute their prevention plans to employees, post a copy of the plan in a visible and prominent location, and include the plan in employee handbooks on or before September 4, 2021.

In light of the NYSDOH's September 6, 2021, designation, the prevention plans must now be implemented. Thus, in addition to distributing the prevention plans, employers now must:

• 1. Immediately review and update prevention plans, if necessary, to ensure that they incorporate current information, guidance, and mandatory requirements issued by federal, state, or local governments related to COVID-19;
• 2. Finalize and promptly activate the prevention plan;
• 3. Provide verbal review of the plan with employees (as set forth below);
• 4. Provide each employee with a copy of the prevention plan, either in English or in Spanish (if that is the employee's primary language);
• 5. Post a copy of the prevention plan in a visible and prominent location at the worksite (except when the worksite is a vehicle); and
• 6. Ensure that a copy of the prevention plan is accessible to employees during all work shifts.

The NYSDOH's declaration is in place until September 30, 2021, at which point the NYSDOH Commissioner will review the level of transmission of COVID-19 in the state and determine whether to continue the designation. While the designation remains in effect, employers must ensure that the prevention plan is effectively followed by:

• 1. Assigning enforcement responsibilities to one or more supervisory employees and ensuring that adequate enforcement of the prevention plan takes place;
• 2. Maintaining and monitoring exposure control measures; and
• 3. Regularly checking for updated information and guidance provided by the NYSDOH and the Centers for Disease Control and Prevention (CDC) regarding COVID-19 so that the plan reflects current control measures.

Verbal Review

With the NYSDOH's September 6, 2021, designation, employers are now required to tell employees verbally about the prevention plan, other applicable policies, and employees' rights to form a safety committee and be free from retaliation in connection with concerns that they may raise about the plan.

The verbal review must be provided in a manner most suitable for the prevention of an airborne infectious disease, whether in person in a well-ventilated environment with appropriate face masks or personal protective equipment or via audio or video conference technology. For ease of administration, large employers may wish to record an initial verbal review and make the recording available to employees who were unable to attend the live review.

Required Exposure Controls

Health Screenings, Testing, and Return From Quarantine

Employers are required to once again conduct health screenings for COVID-19 at the beginning of the workday, in accordance with guidance from the NYSDOH and the CDC, as applicable. In June 2021, the NYSDOH updated its guidance for office-based work (which was subsequently archived once 70 percent of the New York adult population received their first immunization, but which remains available as a resource) to call for responsible parties to screen employees and guests as follows:

• Is the individual currently experiencing or has the individual recently (within the past 48 hours) experienced any symptoms of COVID-19?
• Has the individual had close contact in the past 10 days with any person confirmed by diagnostic test or suspected based on symptoms to have COVID-19?
• Has the individual tested positive for COVID-19 through a diagnostic test within the past 10 days?

Employers must limit the exposure of individuals to employees demonstrating any symptoms of COVID-19 that are not readily attributable to a pre-existing condition. They must also follow applicable NYSDOH and/or CDC guidance concerning protocols for testing, isolation, and quarantine before allowing employees to return to the worksite and inform employees of the same.

The CDC recommends that fully vaccinated people who have come in close contact with a person suspected of or confirmed as having COVID-19 should be tested three to five days after exposure, and to wear a mask in public indoor settings for 14 days or until they receive a negative test result.

Face Coverings

Employers must also provide, at no cost to employees, face coverings in accordance with guidance from the NYSDOH or the CDC, as applicable. Employers must require employees to wear appropriate face coverings when physical distancing cannot be maintained.

While it remains the case that the NYSDOH has lifted mask mandates in New York (its guidance that "fully vaccinated individuals do not need to wear masks or be socially distanced" remains the most recent specific guidance on masks), the CDC recommends that fully vaccinated individuals wear masks in public indoor settings in areas of substantial or high transmission (which includes New York).

Additional Exposure Controls

In addition to health screenings and face coverings, employers must also implement the following exposure controls:

• Physical distancing: When possible, keeping employees at least six feet apart from other individuals or as recommended by the NYSDOH or the CDC, as applicable.
• Hand hygiene facilities: Providing handwashing facilities with an adequate supply of tepid or warm potable water, soap, and single-use towels or air-drying machines. If handwashing facilities are not feasible, the employer must provide hand sanitizing facilities or supplies effective against COVID-19 with at least 60 percent alcohol or other composition determined by the NYSDOH or the CDC, as applicable.
• Cleaning and disinfection: The type and extent of cleaning obligations is based on the location, facility type, type of surface(s) to be cleaned, type of material present, tasks or procedures being performed in the areas, as directed by the NYSDOH or the CDC.

Vaccinated Employees

Neither the HERO Act nor the NYSDOL's regulations contains any reference to an airborne infectious disease for which there is a vaccine. Accordingly, absent additional guidance from the NYSDOL, these steps must be followed, even for vaccinated employees and those employers that have a fully vaccinated workforce.

Definition of "Work Site"

The HERO Act's definition of a "work site" specifically excludes an employee's residence (unless that residence is provided by the employer). Accordingly, employers with a fully remote workforce need not implement a response plan for employees' home offices.

However, employers that have adopted a hybrid working model (in which employees are expected to be at the worksite only certain days of the workweek) or an optional workplace attendance policy remain under a duty to comply with the HERO Act's requirements.

Penalties

Under the HERO Act, the NYSDOL may assess a civil penalty of $1,000 to $10,000 for failure to abide by a prevention plan, which includes implementation of a prevention plan during a designated outbreak. Employers that fail to adopt a prevention plan are subject to a civil penalty of not less than $50 per day. The NYSDOL may also order other appropriate relief including enjoining the conduct of any person or employer.

Next Steps

As of the time of this advisory's publication, neither the NYSDOL nor the NYSDOH has provided any date by which employers must comply with the obligations described above. Accordingly, employers should immediately take all steps to comply with the prevention plans they have implemented and to advise all employees who perform services in New York that the prevention plan is in effect. Furthermore, employers should immediately conduct the verbal review with all applicable employees.

We will continue to monitor the NYSDOL's website for further guidance and will provide additional advisories once that guidance is issued.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.