New York designates COVID-19 as a highly contagious communicable disease

On September 6, 2021, the New York State Commissioner of Health designated COVID-19 as “a highly contagious communicable disease that presents a serious risk of harm to the public health in New York State.”

Employers were not required to implement their airborne infectious disease exposure prevention plans in accordance with the NY Health and Essential Rights Act (the Act).
until such a designation was made by the commissioner.  Consequently, employers are now required to activate their airborne infectious disease exposure prevention plans in accordance with the Act.


Background

As we previously communicated, New York Governor Andrew Cuomo signed the Act , into law on May 5, 2021. The Act added workplace health and safety protections for airborne infectious diseases and required employers to establish a health and safety plan. 

Governor Andrew Cuomo subsequently signed Assembly Bill 7477, which, among other things, extended the deadline to August 5, 2021 for employers to adopt a disease prevention plan.  

Infectious Disease Prevention Plan

Covered Workers

The rules apply to all employees, including part-time workers, domestic workers, home care workers, and other temporary and seasonal workers. It also covers independent contractors and individuals who work for staffing agencies or who deliver goods or transport people at, to, or from the worksite on behalf of the employer. 

Notice and Posting Requirements

Within 30 days of adopting a disease prevention plan, employers must provide written notification of the plan to employees in writing, in English, and in the language identified by each employee as their primary language (provided there is a model plan developed in that specific language). For example, if the employer adopts a plan on August 3, 2021, they must provide the notice to employees by September 2, 2021. The plan must also be provided to employees at the time of hire, within 15 days after reopening after a period of closure due to airborne infectious disease and must be made available upon request. 

The plan must also be posted in a visible and prominent location within each website and included in the employee handbook if the employer provides their employees with an employee handbook. 

The NYDOL posted its model standards and  model plans to its website.  Employers must either adopt the model plan that is relevant to their industry or develop an alternate that meets or exceeds the minimum requirements set forth in the model standards.

Sample introductory language that can be used in conjunction with your infectious disease prevention plan is included below. 

Workplace Health and Safety Committees: 

Beginning Nov. 1, 2021, employers who employ at least 10 employees must allow employees to establish a joint employer-employee workplace health and safety committee authorized to raise health and safety concerns and evaluate the worksite's health and safety policies. The committees must be comprised of at least two-thirds of non-supervisory employees, and non-supervisory employees must select the non-supervisory employees on the committees. 

Employers are also required to allow these safety committee designees to attend training, without loss of pay, on the function of worker safety committees, their rights under the Act, and an introduction to occupational safety and health. 

Authorized Tasks

Committee members are authorized to perform the following tasks, including but not limited to: 

·      Raise health and safety concerns, hazards, complaints, and violations to their employer, that the employer must respond to; 

·      Review any policy put in place at the worksite under the Act and any provision of the workers' compensation law and provide feedback; 

·      Review any policy their employer adopts in the workplace that is in response to a health or safety law, ordinance, rule, regulation, executive order, or another related directive; 

·      Participate in any site visit by any governmental entity responsible for enforcing safety and health standards; 

·      Review any report filed by the employer that relates to the health and safety of the workplace as required by law; and 

·      Regularly schedule meetings during work hours at least once a quarter. 

Employee Protections

Employers are expressly prohibited from retaliating and discriminating against or threatening employees who exercise their rights under the Act. Employees are also protected if they: 

·      Participate in workplace safety committees; 

·      Refuse to work if, in good faith, they believe there's an unreasonable risk of exposure based on working conditions that are inconsistent with the HERO Act or other laws, rules, policies, or relevant government orders and they have notified their employer, and their employer failed to correct the conditions, or the employer had or should have had reason to know about the inconsistencies; or 

·      Report violations or concerns to a state, local, or federal government entity, public officer, or elected official. 

Compliance Recommendations

With the Commissioner of Health's recent designation, New York employers must now implement their infectious disease exposure prevention plan, follow all distribution and notice requirements, and include their plan in their employee handbook where applicable.   

Please contact your dedicated service professional if you have any questions.