On June 15, 2021, Governor Cuomo announced that COVID-19 restrictions were immediately lifted and the New York Forward industry specific guidelines, which address social gathering limits, capacity restrictions, social distancing, cleaning and disinfection, health screening, and contact information for tracing, would now be optional in the following settings: retail, food services, offices, fitness centers, entertainment/amusement businesses, and personal care services. However, in accordance with CDC guidance, individuals who are unvaccinated remain responsible for wearing masks in public and commercial settings. This is welcome news to many businesses and employers, but the news ignores a new COVID-19 related obligation facing employers in New York State: the HERO Act.
The HERO Act requires all employers in New York to adopt a prevention plan to protect against further spread of COVID-19 and other airborne infectious diseases in the workplace. Originally effective June 4, 2021, the HERO Act is now effective July 5, 2021. The HERO Act requires the New York Department of Labor, in consultation with the New York Department of Health, to create and publish a general model airborne infectious disease exposure standard for all worksites and, where appropriate, differentiated by industry. Within 30 days of publication of the model standards, private employers will then be required to establish an airborne infectious disease exposure plan by adopting the appropriate model standard, or an alternative plan that equals or exceeds the model standard. Employers will also be required to provide written notice to their employees about their plan.
As of the date of this blog post, the NY DOL had not yet published the model standards, but they are expected to address the following topics: employee health screenings, face coverings, personal protective equipment, hand hygiene, cleaning and disinfecting of shared work equipment and surfaces, social distancing protocols, and mandatory or precautionary isolation or quarantine orders, among others. Although employers in New York are not required to adopt any new health and safety measures until the DOL issues its model standards, for the time being, New York office-based employers may want to continue to follow the updated interim guidance for office-based work published by the New York Department of Health on June 8, 2021. The guidance addresses many of the same topics to be addressed by the DOL under the HERO Act, and the guidance was issued by the New York Department of Health, the agency consulting with the DOL on the development of the model standards. Once the DOL publishes the model standards, employers should be prepared to make changes in accordance with those standards. The DOL will post updates at https://dol.ny.gov/ny-hero-act.