New York Declares COVID-19 an Airborne Infectious Disease; Triggers Safety Plan Requirements

New York State Governor Kathy Hochul announced on September 6, 2021 that the New York State Department of Health designated COVID-19 a highly contagious communicable disease that presents a serious risk of harm to public health under the New York State Health and Essential Rights Act (HERO Act). Under the Act requirements, businesses must promptly review their worksite exposure prevention plans; activate the protective measures in the plan, including mandatory screening, social distancing, and masking; and provide employees with verbal and written notice of their exposure prevention plans.

HERO Act Background

As noted in the previous LawFlash New York Releases Required Airborne Infectious Disease Exposure Prevention Standard, the New York State Department of Labor (DOL) published a Standard in July 2021 that required businesses with New York worksites to adopt workplace exposure prevention safety plans (worksite safety plans). These plans were not specific to COVID-19 and would only need to be implemented once the New York State Department of Health (DOH) declared that an airborne infectious disease was “a highly contagious communicable disease that presents a serious risk of harm to the public health.” Now that the DOL has declared COVID-19 to be such a disease, businesses must take prompt steps to review their workplace safety plans, provide notice to employees of these plans, and implement their requirements. Many of the plan requirements are familiar to the COVID-19 New York Forward rules promulgated by the state in 2020, and include mandatory daily screening, mask wearing, and social distancing for all employees. There is not a carveout from these requirements for vaccinated workers.

Required Next Steps

Pursuant to the DOL HERO Act Standard, now that a highly contagious communicable disease has been designated by the DOH, each business with a workplace in the State of New York must promptly do the following:

• Immediately review the worksite’s exposure prevention plan and update the plan, if necessary, to ensure that it incorporates current information, guidance, and mandatory requirements issued by government authorities.
• Finalize and promptly activate its worksite safety plan, including assigning a supervisory employee with enforcement responsibilities and ensuring that adequate enforcement takes place by monitoring and maintaining exposure controls.
• Provide employees with a verbal review of the worksite safety plan, other workplace safety policies, and employee rights under the HERO Act, which includes the right to report violations of the safety plan without retaliation or refuse to work if the employee would face an unreasonable risk of exposure inconsistent with the HERO Act safety requirements.
• Provide employees with a written copy of the worksite safety plan in English or the language identified as the primary language of the employee, if a template plan is available in that language (currently, the DOL has published template plans in English and Spanish only).

While the designation of an infectious disease outbreak remains in effect, the Standard requires that employers also take substantive steps to mitigate the threat of transmission of airborne disease. Specific steps employers must take are laid out below.

Health Screenings/Exclusion of Symptomatic Employees

An employer must perform health screenings for the disease at the beginning of a workday. Employers must also (1) limit the exposure of other individuals to employees demonstrating any symptoms of the disease; and (2) follow DOH/US Centers for Disease Control (CDC) protocols regarding testing, isolation, and quarantine before allowing employees to return to the worksite.

Face Coverings

An employer must provide employees with appropriate face coverings at no cost to employees and require that employees wear appropriate face coverings when physical distancing cannot be maintained and in accordance with applicable guidance from the DOH and CDC. Under CDC guidance, summarized in the LawFlash CDC Releases New Guidance on Mask Usage Amid Flurry Of COVID-19 Activity, all individuals must wear masks when working in public indoor settings that are in areas with substantial or high rates of COVID-19 transmission. The DOL Standard now incorporates that guidance and makes it a requirement to follow that guidance in New York.

Physical Distancing

An employer must keep employees at least six feet apart from other individuals “when possible.”

Hand Hygiene Facilities

An employer must provide handwashing facilities with an adequate supply of tepid or warm potable water, soap, and single-use towels or air-drying machines to the extent possible/feasible, and otherwise provide hand sanitizing facilities/supplies. Any hand sanitizer must contain at least 60% alcohol or other composition determined to be appropriate by the DOH or CDC for the designated outbreak.

Cleaning and Disinfection

An employer must determine and implement an appropriate cleaning and disinfection plan appropriate for the particular workplace and disease outbreak, providing for the following:

• Surfaces known or believed to be contaminated with potentially infectious materials must be cleaned and disinfected immediately or as soon as feasible, unless the area and surfaces can be isolated for a period of time prior to cleaning.
• Surfaces contaminated with dust or other loose materials must be wiped clean prior to disinfection, and the cleaning methods used should minimize dispersal of the dust or loose materials into the air.
• Frequently touched surfaces, such as handrails, doorknobs, and elevator buttons, must be disinfected throughout the workday.
• Shared tools, equipment, and workspaces must be cleaned and disinfected prior to sharing.
• Common areas, such as bathrooms, dining areas, break rooms, locker rooms, vehicles, and sleeping quarters, must be cleaned and disinfected at least daily.

Personal Protective Equipment

An employer must also provide and maintain additional protective equipment (as required or recommended by the DOH for employee protection) at no cost to employees. Additionally, employers must

• store, use, and maintain the protective equipment in a sanitary and reliable condition in order to be used at the worksite;
• provide appropriate training and information to each employee required to use personal protective equipment; and
• ensure that any employee-owned equipment being used at the worksite is being maintained in accordance with DOH protocols and is adequate and functional.

Analysis

Every employer with a New York workplace should immediately review and update their airborne infectious disease safety plan, provide the verbal review described above, provide written notice to employees of the plan in English or their primary language, and also post the plan at the workplace. An employer must then ensure the plan is followed and designate a supervisory employee to ensure compliance. Employers should consider developing steps to help assist with compliance, such as conducting regular check-ins on the employer requirements for health screening, social distancing, mask wearing, and cleaning.

Employers that did not previously adopt and distribute a worksite safety plan should do so now. Employers can create their own version of the HERO Act plan (including using a Morgan Lewis template) or use the DOL template compliant safety plan. In addition to the general template plan, the DOL published template industry-specific plans for the following industries: agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing/industry, personal services, private education, private transportation, and retail. Employers that maintain an employee handbook must also include their safety plan in their handbook or in a New York addendum to the handbook.

As with other employment laws, the Standard provides that an employer cannot retaliate against an employee for alleging/reporting a violation of a plan or the HERO Act. Additionally, the Standard prohibits an employer from retaliating against an employee for refusing to work during a designated outbreak where an employee reasonably believes, in good faith, that work exposes them, other workers or the public, to an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with laws, rules, policies, or orders of any governmental entity, including a plan or the HERO Act. In such circumstances, the employee or their designee/representative must notify the employer of the conditions at issue and the employer first has an opportunity to cure the conditions, unless the employer had or should have had reason to know about the conditions and maintained the conditions. Any records regarding notice of a potential risk must be maintained for two years from the designation of an outbreak.

The DOL is likely to issue additional guidance soon, as the DOL HERO Act website was updated on September 7, 2021 to state, “DOL will be sharing more details about this law in the near future.” As such, employers should continue to monitor the updated DOL guidance once available.

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Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

New York
Leni D. Battaglia
Ashley Hale
Melissa D. Hill
Douglas T. Schwarz