NY HERO Act Requires New State Safety Requirements for Private-Sector Employers

The New York Health and Essential Rights (NY HERO) Act aims to provide greater protection to workers from the exposure of future airborne infectious diseases in the workplace. The law requires employers to adopt a plan that would enable a business to take immediate action to protect workers in the event the Commissioner of Health designates a specific airborne infectious disease as “highly contagious”, “communicable” and that presents “serious risk of harm to the public health.”

The New York State Department of Labor (NYSDOL) officially published its Airborne Infectious Disease Exposure Prevention Standard on July 6, 2021, requiring employers within 30 days either to: (1) adopt one of the model standard exposure prevention plans applicable to their industry, or (2) create and adopt an alternative prevention plan that meets or exceeds the minimum standards.

Note: Employers were required to have adopted a plan as of Aug. 5, 2021, and on Sept. 6, the governor designated COVID-19 an airborne infectious disease.

Who Does the NY HERO Act Affect?

All employers with worksite employees within New York state — full-time and part-time workers, independent contractors, domestic workers, seasonal workers, and contractors or subcontractors working on a worksite — are impacted. However, all public-sector employers and/or independent contractors working for the state are currently excluded from the requirements and protections.

What is Required of Employers Under the NY HERO Act?

Each plan should contain requirements for the following:

• Exposure controls (e.g., health screening, face coverings, physical distancing, hand hygiene, cleaning/disinfection, etc.)
• Employee training
• Procedures for what should be done in the event of exposure
• Provide each employee with a copy of the exposure prevention plan in English or in their identified primary language, if available
• Post a copy of the exposure plan in a visible and prominent location at the worksite
• Designation of supervisory employees who are responsible for enforcing compliance with the plan

Employers are prohibited from retaliating or discriminating against any employee for exercising their rights under the adopted plan, reporting an exposure, reporting a violation of the adopted plan or refusing to work if in good faith there is unreasonable risk of exposure to an airborne infectious disease.

The NYSDOL has provided a general Airborne Infectious Disease Exposure Plan template, as well as 11 industry-specific templates. An employer may select to use the general template or create/adopt their own that meets or exceeds the minimum standards — but they must also “consider and incorporate” controls that are industry-specific.

What Happens If I Do Not Comply with the Law?

Employers may be fined $50 per day or more for failing to adopt an airborne infectious disease prevention plan. Employers who neglect to follow the prevention plan they have adopted may face fines ranging from $1,000 to $10,000 by the state Commissioner of Health, with a likely substantial increase in fines if repeated infractions occur within six years.

What’s Next After Adopting a Plan?

By Sept. 4, 2021, employers must post the adopted prevention plan in a visible and prominent location, and it must be added to any employee handbooks. Additionally, the adopted plan must be presented in English, as well as any other primary languages of a business’ employees, to all:

• Current employees
• New employees upon hiring
• All employees (again) within 15 days of a worksite reopening following an airborne infectious disease-related closure

Effective Nov. 1, 2021, employers with at least 10 employees must begin allowing employees to form joint labor-management workplace safety committees. The purpose of this committee is to review and oversee existing policies related to occupational safety and health.

Paychex Can Help

Employers who have had to adapt operations to comply with new guidelines and safety regulations during the COVID-19 pandemic understand the additional complexities this brings to running a business. Paychex understands and offers HR Services that include safety representatives and support with the creation and/or updating of handbooks. Employers might also want to consider implementing or updating their business continuity plan.

Additional Resources

• New York Department of Labor – Airborne Infectious Disease Exposure Plan template (general)
• New York Department of Labor – Industry-specific templates:
  • Agriculture
  • Construction
  • Delivery Services
  • Domestic Workers
  • Emergency Response
  • Food Services
  • Manufacturing & Industry
  • Personal Services
  • Private Education
  • Private Transportation
  • Retail