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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

September 9, 2021

NYS Governor Hochul's COVID-19 Designation Triggers Need for HERO Act Exposure Prevention Plan Implementation

On Monday, September 6, 2021, New York State Governor Kathy Hochul announced that the New York State Department of Health has designated COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health” under New York State’s HERO Act. 

This designation triggers employers to promptly take several steps in order to implement their “exposure prevention plans.” The exposure prevention plan ensures that employers have prepared protocols and policies to prevent the spread of airborne infectious diseases among their employees and the public. Under the HERO Act, employers were required to adopt an exposure prevention plan by August 5, 2021. 

For employers that need to adopt an exposure prevention plan, the New York State Department of Labor has created several model exposure prevention plans for different industries.  Employers can either adopt the model plan that most closely resembles the subject workplace or develop their own safety plan that meets the HERO Act’s standards.

The designation of COVID-19 as a highly contagious communicable disease obligates employers to take the following steps:

  1. Conduct a review of the exposure prevention plan and update the plan, if needed, to incorporate any additional current guidance or requirements.
  2. Implement the finalized exposure prevention plan.
  3. Conduct a verbal review of the exposure prevention plan for all employees.
  4. Provide a copy of the exposure prevention plan to each employee.
  5. Post a copy of the exposure prevention plan in a visible and prominent location at each worksite.
  6. Make a copy of the exposure prevention plan available to employees during all shifts.

The exposure prevention plan is required to include, among other things, certain “exposure controls.” This includes protocols regarding daily health screening, face coverings, physical distancing, hand hygiene facilities, cleaning and disinfection, and personal protective equipment.  The exposure control guidelines are available here.

Employers must assign a least one supervisory employee to enforce the workplace prevention policy. They must also regularly monitor the New York State Department of Health and Centers for Disease Control and Prevention for any updated requirements or protocols and update the exposure prevention plan as needed.

Barclay Damon’s labor and employment attorneys will continue to monitor developments regarding COVID-19 and the HERO Act.

If you have any questions regarding the content of this alert, please contact Brienna Christiano, associate, at bchristiano@barclaydamon.com; Michael Murphy, partner, at mmurphy@barclaydamon.com; Bob Heary, Labor & Employment Practice Area chair, at rheary@barclaydamon.com; or another member of the firm’s Labor & Employment Practice Area.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com, or any member of the COVID-19 Response Team, at COVID-19ResponseTeam@barclaydamon.com.

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