Immediate Action Required: New York Designates COVID-19 as an Airborne Infectious Disease under the New York HERO Act

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On September 6, 2021, Governor Kathy Hochul announced that the New York Commissioner of Health designated COVID-19 as a “highly contagious communicable disease that presents serious risk of harm to the public health” under the New York State Health and Essential Rights Act (“HERO Act”).  This designation will remain in effect until further notice is issued by the State.

As we previously reported, the New York State Department of Labor (“NYDOL”) published the Airborne Infectious Disease Exposure Prevention Standard (the “Standard”) and model workplace exposure prevention plans that New York employers were required to adopt.  As set forth under the HERO Act, employers are not required to implement worksite prevention exposure plans until the New York State Commissioner of Health designates an airborne infectious disease as “a highly contagious communicable disease that presents a serious risk of harm to the public health.”

As a result of COVID-19 receiving such a designation, employers with worksites in New York must “promptly” take certain actions to activate their worksite prevention exposure plans.  Specifically, pursuant to the Standard, New York employers now must:

  1. 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 federal, state, or local governments related to the infectious agent of concern;
  2. Finalize and promptly activate the work site exposure prevention plan;
  3. Provide employees with a “verbal review” of the worksite exposure prevention plan and other workplace safety policies, as well as employee’s rights under the HERO Act. This verbal review can be conducted either in person, or via audio or video conference technology; and
  4. Provide each employee with a copy of the worksite exposure prevention plan, post a copy of the plan in a visible and prominent location at each applicable worksite, and ensure that a copy is accessible to employees during all work shifts.

Notably, while the designation of an airborne infectious disease outbreak remains in effect, the Standard also requires that employers enact the following mitigation measures: conduct daily health screenings, provide face coverings and personal protective equipment (as required or recommended by the New York Department of Health (“NYDOH”) for employee protection) to employees at no cost, implement face covering mandates, enact social distancing protocols, provide hand hygiene facilities to employees, and perform cleaning and disinfection of the worksite(s).

All employers with worksites in New York should immediately take the steps described above and designate one or more supervisory employees with enforcement of the worksite exposure prevention plan.  These employers should also stay up-to-date with any developments from the NYDOH and the Centers for Disease Control and Prevention that may trigger further revision of their worksite exposure prevention plans.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

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