NY HERO Act Update: DOL Issues FAQs

The New York Health Commissioner has stated that the emergency designation of COVID-19 expires -- for now -- on September 30. And the Department of Labor issued Frequently Asked Questions to guide employers in activating their airborne disease prevention plans under the HERO Act.

As previously reported, New York State’s health commissioner has designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health, requiring employers to activate their safety plans under the NY Hero Act.  This Update discusses a few important developments since Governor Kathy Hochul made that announcement earlier this week.

1. The health commissioner’s designation is in place only until September 30, 2021, at which time he will “review the level of transmission of COVID-19 in New York State and determine whether to continue this designation.”
2. The NY Department of Labor issued a fact sheet containing information and FAQs about the Hero Act. Some significant clarifications include:
   • While office-based employers were previously left to guess whether they should adopt a particular industry’s model safety plan or the generic version, the DOL has confirmed that the generic Model Airborne Infectious Disease Exposure Prevention Plan is best suited for employers operating in an office environment.
   • The DOL announced that it “will be promulgating regulations for the HERO Act in accordance with the State Administrative Procedure Act” and specifically noted that it “will issue regulations regarding workplace safety committee requirements in the future.” (As a reminder, the portion of the statute concerning workplace safety committees will not take effect until November 1, 2021).
   • Although the DOL’s guidance provides for an exemption for an employer whose employees are subject to a “temporary or permanent standard” adopted by the U.S. Occupational Safety and Health Administration, it has confirmed that only healthcare workers are currently subject to this exemption, as OSHA’s emergency temporary standard is applicable solely in that industry.  

Seyfarth will continue to monitor developments in this space and provide updates when available.