Key Takeaways

• Employers have until Aug. 5, 2021 to adopt a model prevention plan or create an alternative prevention plan compliant with the Airborne Infectious Disease Prevention Standard

• After creating a prevention plan, employers will have 30 days to communicate the prevention plan to its employees

• Despite the COVID-19 pandemic’s continued presence in society, there is no current government designation requiring employers to follow the plan right now

The New York State Department of Labor (DOL) recently released the highly anticipated Airborne Infectious Disease Prevention Standard, Model Airborne Infectious Disease Exposure Prevention Plan, and industry-specific templates to facilitate compliance with the recently enacted HERO Act. Employers will note that model and industry plans look very familiar to guidance provided in New York Forward, which included health and safety guidelines for New York employers when they reopened in summer 2020.

As we previously noted, the HERO Act was passed in response to the COVID-19 pandemic and amended the New York Labor Law by including two main components: 1) creating a mandate that private sector employers adopt an airborne infectious disease prevention plan; and 2) requiring employers to permit employees to establish joint labor-management workplace safety committees.

Private employers now have less than 30 days, until Aug. 5, 2021, to either adopt one of the model plans or create a prevention plan that meets or exceeds the requirements set forth in the Standard. Notably, if an employer chooses to create an alternative prevention plan, it must be developed in consultation with union representatives if they exist, and in nonunion workforces, there must “meaningful participation of employees.” Regardless of the employer’s choice, the prevention plan must include industry-specific considerations, consider the types of risks at the worksite, and the presence of third parties. After adoption, employers will have 30 days to communicate the prevention plan to employees by a verbal review, as well as post the plan in the workplace and include it in the employee handbook.

While the plans are only currently available in English, the DOL website indicates they will soon be available in Spanish.

Finally, although employers are required to create and communicate the prevention plan, a prevention plan only goes into effect during an outbreak of an airborne infectious disease and when the New York State commissioner of health designates such disease as “a serious risk of harm to the public health.” Currently, there is no such designation listed on the Department of Health or DOL website, and any such designation will be prominently displayed.

With a 30-day deadline, employers should either adopt a model prevention plan or create an alternative prevention plan that is compliant with the Standard. There appears to be at least two main reasons for an employer to consider adopting the model plan developed by the DOL. First, the model plan undoubtedly meets the requirements imposed by the law. Second, it appears that while employers that choose to draft an alternative prevention plan will need to solicit participation by existing unions or employees, employers that adopt the model plan may do so without such employee participation.

For more information or immediate guidance, contact:

• Charles A. Lazo
• Christopher P. Maugans
• Kristin Klein Wheaton
• Caroline J. Berdzik
• Or another member of the Employment and Labor team