As explained in our previous legal alerts, which are available here and here, the New York Health Essential Rights Act (“HERO Act”) requires all private employers to, among other things, develop infectious disease exposure prevention plans.  The HERO Act, signed into law in May, directed the New York State Department of Labor (“DOL”) to develop minimum standards and model plans for various types of work sites.

On July 6, 2021, the DOL issued the minimum standards and model plans to facilitate compliance with the HERO Act.  The guidelines and model plans are available on the DOL’s website for HERO Act information.

The HERO Act gives employers 30 days from the date the DOL publishes model plans to either: (1) adopt the model plan; or (2) adopt a plan that equals or exceeds the standards set forth in the model plan.  In addition, no more than 60 days after adopting a plan, employers must provide the written plan to all employees.  Thereafter, employers must provide a copy of the plan to employees upon hire.

Now that the DOL has published the minimum standards and model plans, employers have 30 days to adopt a compliant plan.  In other words, employers have until August 5, 2021 to adopt a plan.

The DOL has published several industry-specific templates, so employers should be sure to consult the applicable template when developing their own plan.  Importantly, however, the plans only need to be activated when an airborne infectious disease has been designated by the New York State Commissioner of Health.  To date, no such designation has been made by the Commissioner.

For now, employers should develop and adopt a compliant prevention plan, but those plans do not need to be active unless and until a disease is designated by the Commissioner.  In addition, employers should be mindful of the second part of the HERO Act, which takes effect on November 1, 2021.  This part requires employers with at least 10 employees to permit establishment of workplace safety committees, and the DOL is expected to publish additional guidance prior to the effective date.

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This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.