Dear Client and Friends:
In response to the COVID-19 pandemic, New York State passed into law the New York Heroes Act, which requires employers to develop safety plans that become effective when the Commissioner of Labor and Commissioner of Health issue a declaration that there is an airborne infectious disease outbreak (a “Designation”).
The Act requires employers to develop a plan in the event of a Designation and to also allow employees to form a safety committee at their workplace (regardless of whether a Designation is in effect). Employers must adopt a safety plan by August 5, 2021 and publish it to all employees, contractors, and others regularly at the worksite within 30 days of its adoption. Employees must be given the opportunity to form a safety committee by November 5, 2021.
The Department of Labor has now issued both Prevention Standards and Model Plans for employers to use in developing their own plan. This information is available here: https://dol.ny.gov/ny-hero-act.
As the Act applies to all employers of any size in New York, and August 5 is quickly approaching, employers will want to act now to get such a safety plan in place.
Where and When Does the Act Apply?
The Act applies to any physical space, including a vehicle, that has been designated as the location where work is performed over which an employer has the ability to exercise control. An amendment to the Act (signed by the Governor) clarifies that the Act does not include telecommuting sites unless the employer has control over the site. It also does not apply to employees in an industry covered by an applicable direct OSHA standard.
While employers must have a safety plan in place now, the Department of Labor has stated “as of the date of this writing no designation has been made and plans are not required to be in effect.” In other words, this is a contingent safety plan and employers only need to abide by their plan if the Commissioner designates an outbreak.
What Must a Plan Address?
An employer’s required Plan must address a number of topics including the following:
- Health Screenings
- Face Coverings
- Physical Distancing
- Handwashing Facilities and Breaks
- Cleaning and Disinfecting
- Physical Distancing (Social Distancing)
- PPE
- Mandatory or precautionary orders of isolation or quarantine
- Engineering controls (air flow)
- Compliance and designation of enforcement; and
- “Verbal” Training.
The Commissioner’s guidance provides notes on each of these topics for employers to use in formulating their plans.
Perhaps even better for employers, the Commissioner provides fillable .pdf model plans for use by any employer. These include a generic model plan, and model plans for specific industries. These specific industries include:
- Agriculture
- Construction
- Delivery Services
- Domestic Workers
- Emergency Response
- Food Services
- Manufacturing and Industry
- Personal Services
- Private Education
- Private Transportation
- Retail
Review of the Model Safety Plans
The model safety plans are broken down into several sections. The first section, “Responsibilities” requires the employer to designate the employees and locations where the plan applies as well as the Supervisory Employees responsible for enforcement and questions.
The second section, “Exposure Controls” addresses what actions an employer will take in the event of a designated event. This section is broken down into minimum controls and advanced controls. Minimum Controls include:
- General Awareness for Employees of Safety Precautions
- A Stay at Home Policy
- Health Screenings
- Face Coverings
- Physical Distancing with a checklist for employers
- Hand Hygiene
- Respiratory Etiquette
- Special Accommodations for individuals with risk factors
Advanced controls include:
- Elimination of Some Activities (such as travel);
- Engineering Controls;
- Administrative Controls; and
- Personal Protective Equipment.
The model plan also addresses cleaning protocols, including disinfection methods and schedules; and the employer’s response to learning of infection in the workplace.
The regulations require an employer to conduct a “Verbal Review” with employees of the plan, and the model plan clarifies that this training should take place at a minimum when an outbreak is designated. The model plan includes sections for an employer on
- Who will conduct the training
- Topics for the training
- How the training will be conducted (in person, virtual or other)
The model plan provides a chart for employers to document plan revisions.
Finally, the model plan lays out anti-retaliation and records retention policies. Employers may not retaliate against an employee for making a complaint under the plan and must maintain complaints made under the plan for two (2) years following the conclusion of the high risk event.
Commissioner’s Model Plan or Develop Your Own
While employers may adopt their own safety plan, they should be mindful that any employer plan must provide at least as many protections as the Commissioner’s model plan. Further, if an employer adopts their own plan, they must include the input of the appropriate collective bargaining representative(s) or the “meaningful participation” of non-represented employees in making their plan.
Enforcement
The Act is enforced both through fines issued by the Department of Labor or a private right of action by an employee. The private right of action is limited to one where a violation of the safety plan “creates a substantial probability that death or serious physical harm could result”.
Implementation of the Plan
In addition to addressing the content of the Plan, the guidance provides information on what an employer must do if a highly contagious communicable disease receives a Designation. Employers must review their safety plan at that time and update it if necessary. Employers must then implement their plan, provide the required training, monitor for exposure, and check for updates from appropriate agencies. These and other requirements are laid out in more detail in the Commissioner’s standards.
Employers will want to plan now for how to roll out this implementation, particularly if COVID‑19 cases continue to rise.
Workplace Safety Committee (Labor Law 27-D)
The Act also requires an employer to allow employees to create a safety committee. This safety committee must be made up of at least 2/3 non-supervisory employees who are selected by non-supervisory employees. The committee must be co-chaired by employer and non-supervisor designees. The safety committee is empowered to raise concerns about safety issues; to review any policy required by the Heroes Act or the Worker’s Compensation law related to the health and safety of employees; to participate in site visits by government officials related to health and safety; and to review any report by the employer to a governmental agency relating to health and safety.
Employers must allow the committee to hold a regularly scheduled meeting during work at hours at least once a quarter. The meeting should not exceed two (2) hours. Employers must also permit the safety committee designees to attend training for being on the safety committee without loss of pay. Such training is limited to four (4) hours.
Employers may not retaliate against employees for serving on the committee or for raising issues relating to health and safety to their employer.
Conclusion
Employers will want to make important decisions required by the Act (such as who is responsible for the Heroes Act Plan) and prepare their plans now. Employers are advised to also plan for allowing employees to create a safety committee in the fall.
Hinman, Howard, & Kattell attorneys remain available to help employers with this process and to answer any questions you may have as you work through it.
Contact Your HH&K Attorney for Legal Guidance
This information is not legal advice and may not be suitable for all client situations. This Client Alert provides general information and does not outline all of the important considerations related thereto.
This Client Alert is not a substitute for legal guidance regarding program details and how those may be applicable to your business. As always, if we can be of assistance with these programs or any other matters, please do not hesitate to contact your HH&K attorney.
Copyright © 2021 by Hinman, Howard & Kattell LLP. This Client Alert is provided as a general information service to clients and friends of Hinman, Howard & Kattell, LLP. It should not be construed as, and does not constitute legal advice on any specific matter, nor does this message create an attorney-client relationship. These materials may be considered Attorney Advertising in some states.