September 16, 2021

New York Employers Must Activate COVID Prevention Plans Under New York HERO Act

By: Daniel J. Moore, Ibrahim Tariq, Harris Beach, PLLC

In July 2021, the Chamber hosted a briefing from Harris Beach PLLC Partner Douglas Gerhardt about what employers must do under the HERO Act, deadlines, and consequences of non-compliance. The HERO Act creates enforceable safety and health standards aimed at mitigating COVID-19 and other infectious diseases in the workplace through prevention plans and creation of safety committees.

On Sunday, September 6, 2021, New York Gov. Kathy Hochul announced the “designation” of COVID-19 as an airborne infectious disease under the state’s new Health & Essential Rights Act (the “HERO” Act). The designation requires all private-sector employers to activate their HERO Act-compliant workplace exposure prevention plans.

Among other items, the HERO Act requires employers to adopt “Infectious Disease Exposure Prevention Plans.”[1] The New York Department of Labor issued a “Model Infectious Disease Prevention Plan” last month. The DOL also issued several industry-specific prevention plans for employers in certain industries, including agriculture, construction, manufacturing, retail, and others. The model plan and industry-specific plans are available on the DOL’s HERO Act site.

Employers may adopt the DOL’s model plan or industry-specific plan relevant to their workforce. Alternatively, employers can develop and adopt their own prevention plan instead of the DOL’s plans. If developing their own plan however, employers must develop the plan with meaningful participation of their employees. Employers with a union presence may adopt their own plan only with the input and agreement of their union.

The HERO Act treats the prevention plans as dormant until the Department of Health “designates” a particular outbreak of infectious disease as presenting a serious risk of harm to the public health. With the Department of Health’s designation of the current wave of COVID-19 as such an outbreak, employers must now activate their prevention plans.

Keep reading for prevention plan requirements and next steps