NY HERO Act Update: DOL Publishes Model Industry-Specific Disease Prevention Plans

The New York Department of Labor quietly published a general model and industry-specific airborne disease prevention protocols under the NY HERO Act.  Businesses should consult the model protocols and consider whether to adopt the version relevant to their industry or create their own plan that meets or exceeds the statutory requirements.

As previously reported (here and here), the HERO Act required the DOL to publish industry-specific model disease prevention protocols.  Overnight on July 6, 2021, the DOL published the required generally-applicable model protocol as well as specific model protocols for the following industries: agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail.

Employers are now required to meet the following statutory deadlines:

• August 5, 2021: Within 30 days of the DOL’s publication, employers must either adopt the model protocol applicable to their industry or create their own airborne disease prevention plan that meets or exceeds the minimum requirements of the law.
• September 4, 2021: Within 60 days of the DOL’s publication (i.e. Sept. 4), employers must provide the adopted or equally-stringent safety protocols to their employees. (Sept. 4 is a Saturday and the next weekday, Monday, Sept. 6, is Labor Day.  Thus, the likely effective date for this obligation is Tuesday, September 7.)

The model protocols generally track the industry-specific guidelines implemented to address the COVID-19 pandemic in New York, which were recently discontinued. They include specific minimum-exposure controls to be utilized during an outbreak of an airborne communicable disease, including employee health screenings, face coverings, hand hygiene, social distancing, and workplace cleaning and disinfecting.  The protocols also provide a list of more stringent measures to adopt during an outbreak, when “the Minimum Controls alone will not provide sufficient protection for employees,” including temporary suspension of “risky activities,” engineering controls, various administrative controls, and PPE requirements. 

The protocols also set forth anti-retaliation provisions to prevent reprisals against employees who raise concerns about employers’ workplace health measures.

The DOL emphasized that, while employers must now adopt a plan within the statutory deadline, there is no current requirement to activate such plans, as the Commissioner of Health has not designated any particular airborne infectious disease (including COVID-19) as a highly contagious communicable disease that presents a serious risk of harm to the public health.

The DOL further stated that “it will be sharing more details about this law in the near future” and reminds employers to check its website for further updates. It added that it will produce Spanish versions of the model protocols “in the coming days.”

With respect to the workplace safety committees contemplated by the Act, the DOL has not yet published guidance. As a reminder, employers must begin permitting employees to form such committees as of November 1, 2021.  The committees must be allowed to raise workplace health and safety concerns, review employer policies related to workplace health and safety topics, participate in government site visits relating to workplace health and safety standards, and attend committee meetings and trainings related to workplace health and safety standards.

Employers should immediately begin working with counsel to ensure compliance with the provisions of the HERO Act.  Employers with unionized workforces must consider whether and how the requirements under the Act will complement or conflict with their obligations under their respective collective bargaining agreements.

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