Updated October 4, 2021: The commissioner of health has re-designated COVID-19 as a “highly contagious communicable disease” under the NY HERO Act until October 31, 2021.

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On September 6, 2021, the New York State commissioner of health designated COVID-19 as a highly contagious communicable disease, thereby triggering certain requirements under the New York Health and Essential Rights (HERO) Act.  Previously, employers were required to adopt an airborne infectious disease exposure prevention plan by using the state’s model plan or drafting a plan that met the state’s minimum requirements, but employers were not obligated to implement the plan. With the commissioner of health’s formal designation of COVID-19 as a “highly contagious communicable disease” (a designation heralded by New York Governor Kathy Hochul), employers must now implement their New York HERO Act airborne infectious disease exposure prevention plan. This plan includes certain safety measures for the workplace, such as scheduled housekeeping and disinfection schedules, providing PPE to employees, and requiring health screenings for all employees. 

What to do?

Once activated with the designation of a highly contagious communicable disease, the NY HERO Act requires employers to:

• Immediately review and update their plan to ensure it incorporates current information, guidance, and mandatory requirements issued by federal, state or local governments related to COVID-19;
• Finalize and promptly activate their HERO Act plan;
• Provide a verbal review of the plan and provide training to employees;
• Provide each employee with a copy of the plan; and
• Post a copy of the plan in a “visible and prominent location” available to employees on all shifts.

Continuing Obligations

The designation of COVID-19 as a highly contagious communicable disease is set to expire on September 30, 2021, unless continued by the commissioner of health. Employers must ensure their plan is being effectively followed by:

• Designating one or more supervisory employees to enforce compliance with the plan;
• Monitoring and maintaining exposure controls; and
• Regularly checking for updated information and guidance provided by the NY State Department of Health and the Centers for Disease Control and updating the plan to reflect recommended changes in control measures.

As of the date and time of this publication, the state has not issued any additional guidance as to the timing of when these requirements must be met, or addressing other issues, such as to what extent that employees’ vaccination status may affect their facemask and social distancing requirements under a plan and the HERO Act’s airborne infections disease prevention standards.  Employers are encouraged to consult with counsel to work through questions that may arise, to review and update existing prevention plans and to develop training strategies, and to stay apprised of the continually changing legal landscape regarding COVID-19.