NYSDOL Guidance and FAQs Relating to New York's HERO Act

As set forth in our previous advisory, many employer obligations under the New York HERO Act were triggered by the New York State Department of Health's designation on September 6, 2021, of COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health in New York State. On September 9, 2021, the New York State Department of Labor (NYSDOL) issued guidance, a timeline of obligations, and FAQs that detail the obligations employers have under the Act.

Critically, the FAQs confirm:

• The template most appropriate for office-based work is the model airborne infectious disease exposure prevention plan.
• If the employer modifies the General Industry Template prevention plan, the prevention plan is converted to an "alternative plan" that requires employee review and/or participation, which we recommend documenting, including how this review and/or participation was done, and the date(s) on which it was done, as well as a roster of employees involved. Although a verbal review of the plan with all employees must be conducted, that obligation does not apply to individuals working for staffing agencies, contractors and subcontractors, or individuals delivering goods or transporting people to or from the worksite.
• Employers must distribute the prevention plan to independent contractors, individuals working for staffing agencies, and others who traditionally may not be defined as employees. We recommend documenting distribution of the prevention plan, including how the plan was distributed, to whom, and the date on which this was done.
• The verbal review need not be in person and can be done via audio or video conference technology.
• Employers in the healthcare industry are not covered by the HERO Act if the employer is covered by a temporary or permanent standard adopted by the Occupational Safety and Health Administration (additional information relating to OSHA's COVID-19 Emergency Temporary Standard is available here). However, in the event a temporary OSHA standard is no longer in effect, the employer previously covered by the OSHA standard will then be covered by the HERO Act.
• The HERO Act does not apply to governmental entities such as public schools or universities.
• Employers must post the plan at the worksite in a visible and prominent location.

The guidance also highlights upcoming deadlines. Significantly, by November 1, 2021, those employers with 10 or more employees must permit workers to establish and administer a joint labor-management workplace safety committee. Additional information relating to the joint labor-management workplace safety committee can be found in our prior advisory, available here.

Regulations on the HERO Act are forthcoming. 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.