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Special Alert: It’s Time to Take Those HERO Act Plans Off the Shelf

On Monday, September 6, 2021, Governor Kathy Hochul announced the designation of COVID-19 as an airborne infectious disease under New York State’s HERO Act (Act).  As a result of this designation, all covered employers are now required to implement their workplace safety plans. The NY Department of Health (DOH) issued an order to reflect this designation which may be viewed here.

The standard applies to private employers with worksites located in New York (NY), with the exception of those employers covered by the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standards (ETS). For businesses/organizations with remote workers, an airborne infectious disease exposure prevention plan is not required to be adopted for telecommuting/telework sites unless the business/organization has the ability to exercise control of the site.

While the state’s HERO Act webpage has been updated to acknowledge that the DOH’s “designation requires all employers to implement workplace safety plans,” it is not expected that the state will issue highly specific guidance on implementing the activation. However, based on the written prevention standards, employers should pay close attention to Section 8 of the Airborne Infectious Disease Exposure Prevention Standards (“prevention standards”) for guidance on how to proceed.

Section 8 of the prevention standards provides guidance related to the implementation of the exposure prevention plan during an outbreak of an airborne infectious disease as follows:

  1. “When a highly contagious communicable disease is designated by the Commissioner of Health as presenting a serious risk of harm to the public health, each employer shall:
    • Immediately review the worksite’s exposure prevention plan and update the plan, if necessary, to ensure that it incorporates current information, guidance, and mandatory requirements issued by federal, state, or local governments related to the infectious agent of concern;
    • Finalize and promptly activate the worksite exposure prevention plan;
    • Provide the verbal review required in paragraph (d) of this section; and
    • 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, if available, and
      • Post a copy of the exposure prevention plan in a visible and prominent location at the worksite (except when the worksite is a vehicle); and
      • Ensure that a copy of the exposure prevention plan is accessible to employees during all work shifts.
    • Employers that utilize a template exposure prevention plan prepared by the Department of Labor shall not be responsible for errors in translations relating to such.
  2. While the designation remains in effect, the employer shall:
    • Ensure that the worksite’s exposure prevention plan is effectively followed by:
      • Assigning enforcement responsibilities in accordance with Labor Law Section 218-b(2)(i), and ensuring that adequate enforcement of the worksite’s exposure prevention plan takes place;
      • Monitoring and maintaining exposure controls; and
      • Regularly checking for updated information and guidance provided by State Department of Health and the Centers for Disease Control and Prevention (CDC) concerning the airborne infectious disease and updating the exposure prevention plan, when necessary, so that the plan reflects current State Department of Health or Centers for Disease Control and Prevention recommended control measures.
    • Designate one or more supervisory employees to enforce compliance with the exposure prevention plan; this standard; and any other federal, state, or local guidance related to preventing the spread of the airborne infectious disease as applicable to employees and third parties such as customers, contractors, and members of the public within the workplace. No individual who is not a supervisory employee shall have responsibility for overseeing compliance with the requirements of the exposure prevention plan.”

Next Steps for Employers

The good news is that it is highly likely that most employers developed their prevention plan with COVID-19 in mind and now may only need to ensure that they begin doing everything they’ve outlined in their plan, including providing formal training to employees in accordance with the Act’s requirements. Employers should review everything they’ve included in their plan and ensure that they’ve not only considered possible industry specific measures, but that they are identifying any gaps in their plan as it specifically relates to dealing with COVID-19.  

Plan Updates

Based on the requirements under Section 8 of the state’s prevention standards, employers need to review and compare their existing plans against any guidance related to reducing the spread of COVID-19 in the workplace from the CDC, state and local county health departments to determine if there are any gaps in their exposure controls, advanced controls (engineering controls), administrative controls, and required personal protective equipment (PPE). Specifically, employers should ensure that updates incorporate any mandatory requirements issued by federal, state, or local governments, paying careful attention to any industry specific guidance as mentioned previously.

Employers who make updates to their existing plan are required to make note of these changes in Section VI. Plan Evaluations During a Designated Outbreak, as well as redistribute and verbally review their updated prevention plan with employees. The updated prevention plan will need to be included in the employee handbook and posted in a prominent location where it can be easily accessed by employees.

Training

This designation will also activate the requirement for employers to provide training and information which will cover all elements of their prevention plan and the following topics:

  1. The infectious agent (e.g., COVID-19) and the disease(s) it can cause;
  2. The signs and symptoms of the disease;
  3. How the disease can be spread;
  4. An explanation of the exposure prevention plan;
  5. The activities and locations at the worksite that may involve exposure to the infectious agent;
  6. The use and limitations of exposure controls; and
  7. A review of the standard, including employee rights provided under Labor Law, Section 218-B.

Primary Language

One important aspect of compliance is that an employer’s prevention plan must be provided in the employee’s primary language if a model plan has been made available in that language by the state. Currently, there is a Spanish version of the model materials. When using the Spanish model notice, it does not translate the employer typed portions into Spanish. While it is an outstanding question as to whether an employer is required to complete their own translation of this content, there is a statement in the prevention standards which reads, “employers who utilize a template exposure prevention plan prepared by the Department of Labor shall not be responsible for errors in translations relating to such.” However, for those employers who used an alternative plan to develop a notice in another language, this could mean that those who do not have access to translation services or bilingual employees who can assist with translation may be out of compliance and should consult with their legal counsel on translation obligations.

Statewide COVID-19 Guidance

Currently, the state is referring to CDC guidance, and it is unknown if the state plans to issue any mandatory requirements or continue to have employers rely on CDC and local health departments for all COVID-related guidance moving forward. For certain industries, the NY Forward requirements are still in effect; the impacted businesses/organizations are encouraged to review that guidance, in addition to CDC and local guidance, for updates that may need to be included in their prevention plan (refer to the “see active guidance” tab for additional information). For those employers no longer subject to NY Forward guidance, it may be a best practice to refer back to the COVID-19 related requirements as a guide for addressing potential gaps in your current plan (refer to the “view archived guidance” tab).

As statewide guidance for mitigating the spread of COVID-19 is limited, employers are also encouraged to reach out to their legal counsel for additional guidance.

Additional Information

Ultimately, employers will need to default back to proceeding out of an abundance of caution, which may include measures that were taken during the throes of the pandemic, such as updating plans to include health screening questions, ensuring physical distancing, and ensuring that cleaning and disinfecting practices are commensurate with appropriate recommendations for COVID-19.

It should be noted that the DOH order is currently only in effect until September 30, 2021, at which point, the state health commissioner will review the level of transmission of COVID-19 in the state and determine whether to continue this designation.

How HR Works Can Help

Clients who are active on our HR Strategic Services may contact their dedicated HR Works’ representative for guidance on updating their prevention plans and applicable training requirements.

HR Works recognizes the challenges employers may face in activating these plans so quickly and ensuring compliance with state law. If you are not currently an HR Works’ client and have a compliance-related question or are in need of training assistance to comply with the Act, contact us at 1-877-219-9062 or info@hrworks-inc.com for assistance.

HR Works, Inc., headquartered at 200 WillowBrook Office Park in Fairport (Rochester), New York, with an office in East Syracuse, is a human resource management outsourcing and consulting firm serving clients throughout the United States. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.