UPDATE: NY HERO ACT AIRBORNE INFECTIOUS DISEASE PREVENTION PLANS ARE NOW IN EFFECT
On July 12, 2021, the Labor & Employment Department sent out an alert advising that under the NY HERO Act, the New York State Department of Labor, in conjunction with the New York State Department of Health, issued a Model Airborne Infectious Disease Exposure Prevention Plan and that such plans had to be adopted by all employer by August 5, 2021. Further, employers were required to distribute the plans to their employees and post the plan in a visible place on or before September 5, 2021. At the time of our last posting, while employers were required to adopt and distribute the plan, the plans were not in effect until an airborne infectious disease is designated by the New York State Commission of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health.
COVID – 19 DESIGNATED AS A HIGHLY CONTAGIOUS COMMUNICABLE DISEASE THAT PRESENTS SERIOUS RIGHT OF HARM TO THE PUBLIC HEALTH
The highly contagious delta variant has changed the landscape, and with the ever-increasing number of residents testing positive for SARS-COV-2, as of September 6, 2021, COVID-19 has been designated as a highly contagious communicable disease that presents a serious risk of harm to public health. Accordingly, employers are now required to follow their Airborne Infectious Disease Exposure Prevention Plan. Employers are urged to review their plans and to ensure that they are following its terms.
Notably, the Airborne Infectious Disease Prevention Plans has requirements that the employees:
- be screened for symptoms at the beginning of their shifts,
- wear face coverings “to the greatest extent possible throughout the workday,”
- abide by physical distancing “as much as feasible.”
In addition to the model plan and standard, the New York State Department of Health has adopted 11 industry-specific plans:
- Agriculture
- Construction
- Delivery Services
- Domestic Workers
- Emergency Response
- Food Services
- Manufacturing and Industry
- Personal Services
- Private Education
- Private Transportation
- Retail
These model plans and standards may be found on the New York Department of Labor’s website: https://dol.ny.gov/ny-hero-act.
Employers who fail to adopt or follow their Airborne Infectious Disease Exposure Prevent Plan may be fined by the Commissioner of Labor between $1,000 to $20,000 a day. Additionally, the statute allows employees to bring an action for an injunction to enforce the airborne infectious disease prevention plan and to recover its attorneys’ fees and costs.
Accordingly, the cost for failing to implement an Airborne Infectious Disease Prevention Plan can be high. With this new designation, employers are advised to ensure that they have adopted and implemented an Airborne Infectious Disease Prevention Plan.
Employers with questions about Airborne Infectious Disease Prevention Plan, responding to the COVID-19 pandemic, or any other concerns should contact the Gregory S. Lisi, Esq., Chair of the Labor & Employment Law Department or Lisa Casa, Esq. at Forchelli Deegan Terrana LLP’s Labor and Employment Department at (516) 248-1700.
As always, we are here to help.