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July 19, 2021

By: Howard S. Lavin, Elizabeth E. DiMichele, GraceAnn Caramico

On July 6, 2021, the New York State Department of Labor (NYS DOL) published an Airborne Infectious Disease Exposure Prevention Standard (the Standard), a general Model Airborne Infectious Disease Exposure Prevention Plan, and 11 industry-specific Model Airborne Infectious Disease Exposure Prevention Plans, such as for agriculture, construction, domestic workers, manufacturing and industrial, and retail (together, with the general Model Airborne  Infectious Disease Exposure Prevention Plan, the Model Plans). The NYS DOL created the Standard and Model Plans in consultation with the New York State Department of Health, as required by the recently enacted New York Health and Essential Rights Act (NY HERO Act).   The purpose of the NY HERO Act is to protect employees against exposure and disease during future airborne infectious disease outbreaks.

New York State employers have until August 5, 2021, to either adopt one of the Model Plans or to develop their own alternative plan that meets or exceeds the requirements outlined in the Standard.  Alternative plans must be developed cooperatively with their employees’ union representatives, if any, or with “meaningful participation” of employees if the employees are not represented by a union.

Employers must provide their safety plan to their employees within 30 days of adoption, and then post the plan in a conspicuous location within their workplace.  The plan also must be added to the employer’s Employee Handbook, if applicable, and given to new employees upon hire, likely as part of their onboarding process.

While employers must adopt a safety plan, there currently is no requirement to implement the plan. Rather, the safety plan will only go into effect when an airborne infectious disease is designated by the New York State Commissioner of Health (Commissioner) as a highly contagious communicable disease that presents a serious risk of harm to the public health. Currently, no such designation has been made by the Commissioner.  

Another portion of the NY HERO Act becomes effective November 1, 2021.  This section of the NY HERO Act authorizes the creation of a joint employer-employee workplace safety committee to evaluate workplace health and safety measures.

At this time, New York employers should review the Standard and Model Plans to make threshold decisions about whether to adopt one of the Model Plans or create an alternative plan which is more tailored to their workplace.

This Stroock publication offers general information and should not be taken or used as legal advice for specific situations, which depend on the evaluation of precise factual circumstances. Please note that Stroock does not undertake to update its publications after their publication date to reflect subsequent developments. This Stroock publication may contain attorney advertising. Prior results do not guarantee a similar outcome.

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