On May 5, 2021, Governor Cuomo signed the New York Health and Essential Rights Act (“NY HERO Act”). The NY HERO Act provides that the New York Department of Labor (“DOL”), in consultation with the New York Department of Health (“DOH”), will promulgate new Airborne Infectious Disease Exposure Prevention Standard. It further provides that the DOL and DOH would publish a model Airborne Infectious Disease Exposure and Prevention Plan. Once the model plan is published, employers have 30 days to adopt either a model plan, or a plan that meets or exceeds the DOL’s standards.
On July 6, 2021, the DOL published its model plan. Accordingly, all employers in New York State now have until August 5, 2021, to adopt either the New York State model plan, or their own plan, which meets or exceeds the DOL’s standards. If an employer elects to adopt its own plan, employers must do so with input from either representative(s) of the employees, or, where applicable, the employees’ elected collective bargaining representatives.
The model plans are available on the DOL’s website.  In addition to the model plan, the DOL has published 11 industry specific model plans, to wit:
– Delivery Services
– Domestic Workers
– Emergency Response
– Food Services
– Manufacturing and Industry
– Personal Services
– Private Education
– Private Transportation
Employers must provide a copy of their Airborne Infectious Disease Prevention Plan to its employees on or before September 5, 2021. Additionally, employers must post their Airborne Infectious Disease Prevention Plan in a visible and prominent location within each worksite and include the plan in their employee handbook.
While employers must adopt a plan, the plan only takes effect when an airborne infectious disease is designated by the New York State Commission of Health as highly contagious communicable disease that presents a serious risk of harm to the public health. At this time, there is no disease with such a designation.
Employers may not retaliate or discriminate against any employee for:
(a) Exercising their rights under the NY HERO Act or under the applicable airborne infectious disease exposure prevention plan.
(b) Reporting violations of the NY HERO Act or the applicable airborne infectious disease exposure prevention plan to any state, local, or federal government entity, public officer or elected official.
(c) Reporting an airborne infectious disease exposure concern to, or seeking assistance or intervention with respect to airborne infectious disease exposure concerns, to their employer, state, local, or federal government entity, public officer or elected official.
(d) Refusing to work where such employee reasonably believes, in good faith, that such work exposes him or her, or other workers or the public, to an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with laws, rules, policies, orders of any governmental entity, including but not limited to, the minimum standards provided by the model airborne infectious disease exposure prevention standard, provided that the employee, another employee, or employee representative notified the employer of the inconsistent working conditions and the employer failed to cure the conditions or the employer had or should have had reason to know about the inconsistent working conditions and maintained the inconsistent working conditions.
N.Y. Lab. Law § 218-b.
Additionally, employers who fail to adopt the Airborne Infectious Disease Prevention Plan may be imposed a fine of $50.00 per day by the Commissioner of Labor. Further, employers who fail to follow the Airborne Infectious Disease Prevention Plan when in effect may be fined between $1,000 and $10,000. Penalties increase for any subsequent violations found within six years.
Employees may also bring an action for an injunction, and seek attorneys’ fees and costs “against an employer alleged to have violated the airborne infectious disease exposure prevention plan in a manner that creates a substantial probability that death or serious physical harm could result to the employee from a condition which exists, or from one or more practices, means, methods, operations or processes which have been adopted or are in use, by the employer at the work site, unless the employer did not and could not, with the exercise of reasonable diligence, know of the presence of the violation.”
Accordingly, the cost for failing to adopt and implement an Airborne Infectious Disease Prevention Plan can be high. Employers should act now to adopt an Airborne Infectious Disease Prevention Plan and disseminate the plan to its employees to avoid any costly penalties.
Employers with questions about Airborne Infectious Disease Prevention Plans, responding to the COVID-19 pandemic, or any other concerns should call the attorneys in Forchelli Deegan Terrana LLP’s Employment & Labor practice group at 516-248-1700.