The HERO Act: important updates for New York employers

On September 30, 2021, the New York State Commissioner of Health extended the designation of the coronavirus disease 2019 (COVID-19) as a “highly contagious communicable disease that presents a serious risk of harm to the public health in New York State” under the New York Health and Essential Rights Act (the NY HERO Act) through October 31, 2021.

The Commissioner’s initial designation, which was issued on September 6, 2021, triggered the NY HERO Act’s requirement that employers implement certain health and safety protocols while such a designation is in effect, including:

• Face coverings.  Generally, all employees (defined broadly to include all full- and part-time employees, independent contractors, individuals working for digital applications or platforms, workers hired through a staffing agency and domestic workers) are required to wear appropriate face coverings when physical distancing (ie, maintaining six feet of distance) is not possible, in accordance with applicable guidance issued by the New York State Department of Health (NYSDOH) or the Centers for Disease Control and Prevention (CDC). However, the New York State Department of Labor (NYSDOL) recently updated its Model Airborne Infectious Disease Exposure Prevention Plan to clarify that face coverings are recommended, but not required, in workplaces where all individuals on premises are fully vaccinated against COVID-19. In addition, employers are required to provide appropriate face coverings to employees at no cost.
• Social distancing.  Employees are required to maintain six feet of distance from each other to the greatest extent possible, in accordance with applicable guidance from the NYSDOH or CDC.
• Daily health screenings.  Employers are required to screen employees for signs and symptoms of a potential COVID-19 infection at the beginning of each workday, in accordance with applicable NYSDOH and CDC guidance.  In addition, employees are required to self-monitor throughout the day and report any new or emerging signs or symptoms of COVID-19 to their employer.  Any employees that show signs and symptoms of COVID-19 should not be permitted to enter the workplace – or should be removed from the workplace if symptoms develop during the workday. They should additionally be advised to contact a healthcare professional.
  • NOTE:  Although there is not currently any guidance specifying what the required daily health screening must entail, employers should consider implementing the health screening protocols that were previously in place under the “NY Forward” reopening guidance, which required that employees complete a daily health screening questionnaire confirming whether (i) they are currently experiencing and/or have experienced, in the past 48 hours, symptoms of COVID-19; (ii) in the past 10 days, they have been diagnosed or tested positive for COVID-19; and, (iii) in the past 10 days, they have been in close contact with anyone who has tested positive for COVID-19 or who has had symptoms of COVID-19.   
• Posting/notice requirements.  Employers are required to (i) provide each employee with a copy of the worksite’s Airborne Infectious Disease Exposure Prevention Plan (the Plan) in English or in the language identified as the primary language of such employee, if available; and (ii) post a copy of the Plan in a “visible and prominent location” available to employees on all shifts.
• Verbal review.  Employers are required to conduct a “verbal review” (ie, training), which must cover (i) the health and safety protocols set forth in the Plan; (ii) signs and symptoms of the disease;¹ (iii) how the disease can be spread;² (iii) the activities and locations in the workplace that may involve exposure to the disease through, for example, close contact or poor ventilation; (iv) the use and limitation of exposure controls (eg, masks and social distancing); and (v) employee rights under the NY HERO Act (eg, the right to notify employer of violations of the Plan and/or the NY HERO Act, anti-retaliation protections). This verbal review can be conducted in person (in accordance with applicable requirements – for example, face covering and social distancing) or via audio or video conference technology.
• Hand hygiene.  Employers are required to either provide (i) handwashing stations with “tepid or warm potable water, soap, and single-use towels or air-drying machines” or (ii) hand sanitizing facilities or supplies effective against COVID-19 with at least 60-percent alcohol or other composition determined by the NYSDOH or the CDC.
• Cleaning and disinfection.  Employers are required to determine and implement an appropriate plan for cleaning and disinfection that includes the methods of decontamination based upon the location, facility type, type of surface(s) to be cleaned, type of material present, tasks or procedures being performed in the area, and as otherwise directed by the NYSDOH or CDC.  In addition, employers are specifically required to clean and disinfect (i) frequently touched surfaces (eg, handrails, doorknobs, elevator buttons) throughout the workday; (ii) shared tools, equipment and workspaces prior to sharing; and (iii) common areas (eg, bathrooms, dining areas, break rooms) at least daily.

In addition, beginning on November 1, 2021, the NY HERO Act requires employers with 10 or more employees to permit employees to establish and administer a joint labor-management workplace safety committee composed of employee and employer designees.  If established, this committee will be tasked with, among other things, (i) reviewing and updating the Plan, as necessary; (ii) raising occupational health and safety concerns implicated by the NY HERO Act’s provisions; (iii) participating in site visits by governmental entities responsible for enforcing safety and health standards; and (iv) regularly scheduling a meeting during work hours at least once per quarter.  The NYSDOL has indicated that it will provide guidance on joint labor-management workplace safety committees prior to November 1, 2021.

Additional information and resources, including the NYSDOL’s Airborne Infectious Disease Exposure Prevention Standard, Model Plan and industry-specific templates, are available on the NYSDOL’s NY HERO Act website and FAQ.

For further information, please also see our earlier client alert on the HERO Act.

If you have any questions regarding the NY HERO Act or other legal issues concerning COVID-19-related restrictions for employers, please contact any member of the DLA Piper Employment group or your DLA Piper relationship attorney, or email us at CoronavirusEmployment@dlapiper.com.