Frankly Speaking – NYS HERO Act has employers asking, “WTH?”

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Babe Ruth2Is anyone else tired of legislative acronyms? (Yes, and I can’t wait to see how you manage to connect legislative acronyms to Babe Ruth.) Almost no one, including the legislators, know what they stand for. Especially when the acronyms are ridiculously overused, like SAFE, CARE, FAIR, STOP, HELP, HOPE…well, you get the idea.

Some of the classics I found:

  • Robo COP Act – Robo Calls Off Phones Act;
  • FLY Act – Financial Literacy for Youth Act;
  • End GREED Act – End Government Reimbursement of Excessive Executive Disbursements Act;
  • APPLE Juice Act – Arsenic Prevention and Protection from Lead Exposure in Juice Act; and my favorite,
  • BABE RUTH Act – Build America Bonds Extension for Rural and Urban Transportation and Highways Act, which obviously has nothing to do with baseball. (That’s why you have a picture of The Babe…overplayed, but clever.)

Never ones to let go of a bad thing, New York lawmakers recently passed a novel, sweeping overhaul of the State’s workplace health and safety laws. The HERO Act – Health and Essential Rights Act (wait, I think you forgot something…there’s no “O” word, you need an “O” word if the acronym is HERO), is intended to “to protect employees against exposure and disease during a future airborne infectious disease outbreak.

Among other things, the HERO Act (again, without an “O” word, it’s the HER Act) instructed the New York State Department of Labor (“NYSDOL”) to create written model airborne infectious disease exposure prevention standards to cover workplaces throughout NY. Specifically, the NYSDOL was tasked with creating separate model standards for, (1) industries representing a significant portion of the workforce, or those with unique characteristics requiring distinct standards, and (2) all remaining worksites not included in the specific industry standards.

The model standards, published July 7, 2021, are important for several reasons. Chief among them is that all employers in NY State – regardless of size, industry, or location – have 30 calendar days from that date to establish an airborne infectious disease exposure plan. With the clock ticking, and the August 6, 2021, deadline fast approaching, employers have an important choice to make: (1) commit the time, effort, and financial resources necessary to create and implement their own airborne infectious disease exposure plan that meets or exceeds the State’s minimum standards; or (2) adopt the appropriate industry-specific Model Airborne Infectious Disease Exposure Prevention Plan published by the NYSDOL.

For employers like me who think this is one of the easiest decisions they’ve had to make all year, the specific industries covered are: agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail. (OK genius, where do they find these miracle model plans?) You can find the State’s model materials at, https://dol.ny.gov/ny-hero-act.

Another important point is that NY employers are not required to implement a plan in response to COVID-19. According to the Standards, they apply only to “an airborne infectious agent or disease designated by the Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health” and do not apply to “any employee within the coverage of a temporary or permanent standard adopted by the Occupational Safety and Health Administration setting forth applicable standards regarding COVID-19 and/or airborne infectious agents and diseases.”

With that in mind, all NY employers are required to:

  • adopt an industry-specific Model Airborne Infectious Disease Exposure Prevention Plan published by the NYSDOL – or create and implement a company-specific plan that meets or exceeds the State’s minimum requirements – no later than August 6, 2021;
  • provide a copy of the final plan to all workers – including all full- and part-time employees, independent contractors, staffing agency employees, and domestic workers – in writing within 30 days from the date the plan is implemented (or September 4, 2021, at the latest), and, going forward, immediately when new workers join the company, and to all workers and bargaining (union) representatives upon request;
  • post a copy of the company’s plan in each workplace and in a prominent location accessible to all workers;
  • include a copy of the company’s plan in the employee handbook; and
  • in the event of a future closure due to an airborne infectious disease, a written copy of the plan must again be provided in writing to all workers listed above – this time within 15 days after reopening. 

Employers with remote workers are not required to adopt an Airborne Infectious Disease Exposure Prevention Plan for telecommuting or telework sites (such as employees’ homes) unless the employer can exercise control over the site.

Finally (yes, finally!), the State’s standards indicate that employers should review and update their plans as necessary to reflect new or modified tasks and procedures related to occupational exposure and to reflect new or revised worker assignments. Regularly reviewing and updating the company’s plan will help ensure you’re able to “promptly activate the worksite exposure prevention plan” in the event an airborne infectious disease emergency is declared.

At this point, I’m guessing you have a few acronyms in mind to describe your feelings about this latest mandate, and HERO isn’t one of them!


 
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Employment-related questions or issues? Does your employee handbook need to be updated? Contact me at frank@hrcexperts.com, or call 585-416-0751.
 
Stay well… 

Posted by Frank Cania, president of HR Compliance Experts LLC.

© 2021 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.


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