New York Employers Now Required to Have a Written Plan to Combat COVID-19 in the Workplace

September 13, 2021

New York State has now designated COVID-19 as a “highly contagious communicable disease” as defined under the New York Health and Essential Rights (HERO) Act. The designation carries some significant changes in how employers deal with COVID in the workplace.

Our labor and employment team has been fielding questions from our clients across a wide variety of industries seeking answers on how this designation impacts their businesses and what they need to comply with the HERO Act.

Though the Act lacks a degree of specificity in several elements of its rollout, a few things are clear:

• If you are an employer in New York State, you are now required to have a written Airborne Infectious Disease Exposure Prevention Policy and Plan in place to protect your employees and visitors against COVID-19. That plan must also be actively implemented.
• As part of the written policy, according to the Act: “Health screening for the disease shall be performed at the beginning of the workday, in accordance with guidance issued by State Department of Health or the Centers for Disease Control and Prevention, as applicable.”
• The time is now. Don’t wait until you have time to roll out your policy. Don’t take a lax approach to implementing or enforcing it. There are penalty and whistleblower components to the HERO Act, and you don’t want to end up on the wrong end of a complaint due to lack of compliance.
• The New York State Department of Labor has created a model policy template that can be used for businesses that may not have the time or resources to develop their own plan. Many employers are using the model policy as there are places within the model policy that permit an employer to insert additional measures or processes that are specific to their workplaces. You can find the state’s template here. If you do decide to develop your own plan, we are here to answer your questions and work with you on a plan that is compliant with the standards sets forth in the HERO Act.
• An employer is not responsible for adopting and implementing a plan for tele-commuting employees’ workspaces (typically such employees’ houses) provided the employer does not maintain control over these workplaces.
• One last piece of guidance: if you have created a plan, make sure you are distributing it to ALL employees either physically or via email. That includes all new employees joining your organization. You’ll also want to document receipt of the plan by each employee and keep that record in case it is needed down the road.

There is some ambiguity within this latest NYS regulation, and we expect more clarity to come down from Albany in the days and weeks to come. For example, currently there is no distinction between vaccinated and unvaccinated employees as to the applicability of various sections of the prevention plan. In the meantime, we are available to work with our current and future clients to ensure you remain in compliance and can continue to focus on the work of your organization.

Click here to read the full release from Gov. Hochul’s office

Click here to learn more about the HERO Act.

Katherine Liebner is an attorney at Gross Shuman P.C. Ms. Liebner focuses her practice in the areas of estate planning, estate and trust administration, and labor and employment law. She can be reached at 716.854.4300 ext. 236 or [email protected].