The New York Health and Essential Rights Act (“HERO Act”), which was enacted on May 5, 2021, mandated new workplace health and safety protections in response to the COVID-19 pandemic. One section of the law requires employers to implement an airborne infectious disease exposure prevention plan (“Plan”) based on the model plan provided by the Department of Labor.

On September 6, 2021, Governor Kathy Hochul announced the designation of COVID-19 as an airborne infectious disease under the HERO Act. Now that COVID-19 has been designated as an airborne infectious disease, all employers must implement their Plan. Specifically, all employers must:

• Immediately review their Plan (and update the Plan, if necessary), to ensure that it incorporates current information, guidance, and mandatory requirements issued by federal, state, or local governments related to the infectious agent of concern.
• Finalize and promptly activate the Plan.
• Provide a verbal review of the Plan with their employees. This verbal review is not required to be in person. Per the Department of Labor, employers should conduct the verbal review in a manner most suitable for the prevention of an airborne infectious disease, including via audio or video conference technology when applicable. The training must be provided at no cost to employees and take place during working hours. If training during normal work hours is not possible, employees must be compensated for the training time (with pay or time off).
• Provide each employee with a copy of the Plan in English or in the language identified as the primary language of such employees, if available. The Plan must also be posted at the worksite and be accessible to employees during all work shifts. The Plan must also be distributed to independent contractors used by the employer.

While the designation remains in effect, employers must ensure that the Plan is effectively followed by:

• Assigning enforcement responsibilities and ensuring that adequate enforcement of the Plan takes place.
• Monitoring and maintaining exposure controls.
• Regularly checking for updated information and guidance provided by State Department of Health and the CDC concerning the airborne infectious disease and updating the Plan, when necessary, so that the plan reflects current State Department of Health or CDC recommended control measures.
• Designating one or more supervisory employees to enforce compliance with the Plan and any other federal, state, or local guidance related to preventing the spread of the airborne infectious disease as applicable to employees and third parties such as customers, contractors, and members of the public within the workplace.

 The designation will remain in effect until Sept. 30, 2021, at which time the level of transmission of COVID-19 in New York State will be reviewed to determine whether to continue the designation.