The New York State Department of Health (“NYS DOH”) has extended its designation of COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health” through October 31, 2021. Accordingly, employers must continue to implement their NYS HERO Act plans through at least the end of the month.
As detailed in our earlier post, Section 1 of the NYS HERO Act requires employers to develop Airborne Infectious Disease Exposure Prevention Plans (“Prevention Plans”) to help protect employees in the workplace. The NYS Department of Labor (“NYS DOL”) issued model plans, available here, for employers to use.
On September 6, 2021, the NYS DOH designated COVID-19 as an airborne infectious disease. This designation required employers to activate and implement their Prevention Plans, and provide training to their employees. We can assist employers who have not yet taken these steps. It is important that all employers implement these plans immediately.
Employers may be required to pay penalties of $50 or more per day for not creating a plan and up to $10,000 for not following an adopted plan. Section 1 of the HERO Act also allows employees to bring a private right of action against their employer for not adopting a plan or not following a plan in certain situations. The HERO Act also prohibits retaliation against employees who exercise their rights under the Act, including raising questions about compliance with the safety and health plan.
At the end of this month, the NYS DOH will review the level of transmission of COVID-19 in the State and determine whether to continue the current designation.
As a reminder, Section 2 of the HERO Act requires employers with 10 or more employees to allow employees to create a joint labor-management workplace safety committee. That part of the HERO Act goes into effect on November 1, 2021. We expect the NYS DOL will provide additional guidance for Section 2 before that date. We will keep track of any developments.
If you have additional questions or concerns about complying with New York’s HERO Act, please contact Chaim Book at cbook@mb-llp.com, Sheryl Galler at sgaller@mb-llp.com, or Melanie Sarver at msarver@mb-llp.com.
