New Guidance and Updated Model Workplace Prevention Exposure Plans Available for Employers to Comply with the New York HERO Act

On September 23, 2021, New York State issued Information and FAQs (the “FAQs”)[1] regarding the New York State Health and Essential Rights Act (“HERO Act”), as well as updated model workplace exposure prevention plans.  As we previously reported, the New York Commissioner of Health designated COVID-19 as a covered “highly contagious communicable disease” under the HERO Act, which triggered requirements for employers with worksites in New York to take certain actions, including, but not limited to, implementing worksite prevention exposure plans.

The New York Department of Labor (“NYDOL”) issued an updated general model worksite prevention exposure plan, along with updated model industry-specific worksite prevention exposure plans (“Model Plans”), which reflect the following two substantive modifications:

• The Model Plans now distinguish between employers that have enacted mandatory vaccination policies and those that have not with regard to face covering requirements. Namely, the Model Plans provide that in workplaces “where all individuals on premises, including but not limited to employees, are fully vaccinated . . . [a]ppropriate face coverings are recommended, but not required, consistent with State Department of Health and Centers for Disease Control and Prevention applicable guidance, as of September 16, 2021.”  For all other workplaces, employees are required to wear appropriate face coverings “in accordance with guidance from State Department of Health or the Centers for Disease Control and Prevention, as applicable.”  Previously, the Model Plans were much more stringent in requiring employees to wear face coverings “throughout the workday to the greatest extent possible.”
• The Model Plans were updated to remove language regarding avoiding unnecessary gatherings and using face coverings when social distancing was not possible. Now, the Model Plans state that, “[p]hysical distancing will be used to the extent feasible, as advised by guidance from State Department of Health or the Centers for Disease Control and Prevention, as applicable.”

While the FAQs largely reiterate the statutory language of the HERO Act, the FAQs do shed light on the following requirements of the law:

• According to Section 2 of the HERO Act, by November 1, 2021, covered employers with at least ten (10) employees must “permit employees to establish and administer a joint labor-management workplace safety committee.” This ambiguous language leaves many open questions regarding the process by which the workplace safety committee should be formed and administered. In an apparent acknowledgment of the confusion, the FAQs state that the NYDOL “will provide guidance on Section 2 of the HERO Act prior to November 1, 2021.”
• Under the HERO Act, employers that do not choose to adopt one of the applicable Model Plans issued by the State must develop an “alternative plan” pursuant to an “agreement with the collective bargaining representative, if any, or with meaningful participation of employees where there is no collective bargaining representative.” This language raises questions regarding to what extent (if any) an employer may alter the applicable Model Plan before it constitutes an “alternative plan” that triggers the employer’s duty to involve employees in the adoption of the plan.  While the FAQs do not directly address this issue, the FAQs suggest that employers may use the “Advanced Controls” section of the Model Plans to “add controls that are applicable to their specific business” without fear of transforming the applicable Model Plan into an “alternative plan” under the law.

As noted above, the FAQs note that the NYDOL will be promulgating regulations regarding the HERO Act in the near future. As a result, employers with worksites in New York should closely monitor any further developments and speak to counsel to ensure compliance with the HERO Act.

[1] Shortly after being posted, the link to the FAQs was removed from the NYDOL’s NYS HERO Act homepage without explanation.  The significance of the removal of the link, if any,  is unclear.