Prompt Action Required as COVID-19 Designated an Airborne Infectious Disease under New York State’s HERO Act

Posted: September 15, 2021

As we previously reported, New York’s HERO Act (the “Act”) requires businesses with New York worksites to adopt an airborne infectious disease prevention plan that contains certain safety measures to protect against the spread of airborne infectious diseases in the workplace.

On September 6, 2021, the NY State Commissioner of Health designated COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health” under the Act. This designation triggers an obligation for businesses to put their HERO Act safety plans into effect. As a result, if not already done, employers should consider promptly taking the following steps to activate their plans and ensure compliance with the Act:

  • Review your existing COVID-19 related safety measures to ensure their alignment with the measures set forth in your safety plan, and adopt additional safety measures, if needed, to ensure compliance. This should include a review of current applicable COVID-19 related workplace safety guidance and mandates from state, local government or relevant agencies (e.g., the CDC, OSHA, the NY Department of Health, etc.)
  • If you change your plan at all, post and ensure distribution of the updated plan to all employees, and update the plan in your handbook (if applicable) accordingly.
    • Note: the state’s general model plan is now also available in Spanish. Be sure to distribute a Spanish version of your plan to employees who have identified Spanish as their primary language.
  • Promptly notify employees that your safety plan is now in effect based on the designation of COVID-19 as an “Airborne Infectious Disease” by the NY State Commissioner of Health.
  • Remind employees which supervisory employees have been designated to enforce the plan and who will act as designated contacts.
  • Provide a verbal review of the plan and specific COVID-19 safety measures that are being implemented with your workforce. This can be done in person or via audio or video conference. 

The NYS commissioner’s designation will remain in effect until September 30, 2021, at which point the commissioner will “determine whether to continue [the] designation.” Employer obligations under the Act are developing, and therefore employers should continue monitoring guidance and information from the NY State Department of Health and Department of Labor to determine additional or continuing obligations, if any.

We will continue to monitor this legislation and will provide you with further updates regarding the Act’s implementation if and when they become available.

If you have any questions about this topic, please contact the authors Keli Liu and Zev Singer, or your personal Greenwald Doherty contact.