Author: Scott Horton

Scott has been practicing Labor & Employment law in New York for almost 20 years. He has represented over 400 employers and authored 100s of articles and presentations and wrote the book New York Management Law: The Practical Guide to Employment Law for Business Owners and Managers. Nothing on this blog can be considered legal advice. If you want legal advice, you need to retain an attorney.

July 20, 2021

NYS Issues Model Airborne Infectious Disease Exposure Prevention Plans Under HERO Act

The New York Health and Essential Rights Act (NY HERO Act) requires employers to put plans in place to protect workers in the event of future infectious disease outbreaks. Although motivated by the COVID-19 pandemic, the plans are not specific to COVID. In fact, the State’s model airborne infectious disease exposure prevention plans were released on July 6, 2021–after the COVID-19 state of emergency had been lifted. Thus, while the law requires employers to adopt plans, the plans themselves will only take “effect” in the event of a future outbreak of an airborne infectious disease.

For more on the NY HERO Act generally, read:

New York HERO Act Goes Far Beyond COVID

NY HERO Act Amendments Reduce Employer Burdens

Employer Obligation

All private sector (non-government) employers in New York State must adopt an airborne infectious disease exposure prevention plan by August 5, 2021.

Employers must provide a copy of their plan to all employees within 30 days after adopting the plan. After that, all new employees must receive a copy of the plan with other new-hire paperwork at the beginning of employment.

As the basis for meeting the plan requirement, employers must review the “Airborne Infectious Disease Exposure Prevention Standard” and the general and industry-specific template plans.

Airborne Infectious Disease Exposure Prevention Standard

The New York Airborne Infectious Disease Exposure Prevention Standard applies to private employers with worksites located within the state. It only applies when the NYS Commissioner of Health has designated an airborne infectious agent or disease as “a highly contagious communicable disease that presents a serious risk of harm to the public health.” This threshold generally will not include coverage of seasonal diseases, such as the flu.

The Standard addresses two primary components:

Exposure Prevention Plan
Exposure Controls

It also discusses relevant statutory anti-retaliation protections.

Exposure Prevention Plan

Each covered employer must establish a written airborne infectious disease prevention plan. Companies can either adopt the State’s model plan for their industry or create their own plan containing all necessary elements. However, deviating from the model plan requires agreement with any union in place or “meaningful participation” of employees if there is no union.

Employers must review and update their plan as necessary, including to reflect new or modified employee assignments related to safety compliance.

A notable new requirement under the DOL’s standard compels employers to verbally review the plan (and related employee rights) with all employees. Although the wording is ambiguous, it appears this may not have to be done unless/until there is an airborne infectious disease that has been designated as presenting a serious risk of harm to public health. That designation also generally “activates” the pre-adopted airborne infectious disease exposure prevention plan.

Exposure Controls

A company’s plan must address specific categories of exposure controls. Most of these elements became commonplace during the COVID-19 pandemic, including health screening, face coverings, physical distancing, hand hygiene, cleaning and disinfection, and personal protective equipment (PPE).

The DOL Standard includes a requirement that employers must provide recommended PPE (such as face coverings) to employees during outbreaks of airborne infectious diseases.

Model Airborne Infectious Disease Exposure Prevention Plan

The Department of Labor’s model Airborne Infectious Disease Exposure Prevention Plan is reminiscent of the Department of Health’s safety plan templates from early in the coronavirus crisis. It takes the form of a largely complete document with space for employers to add various company-specific details.

In addition to the general model plan, there are industry-specific templates for:

The industry templates do not vary significantly from the general plan. The primary differences relate to the specific listing of “advanced controls during an outbreak.”

Introduction

The model plans begin with a general overview of their purpose. The introductory language notes that the plan will only be in effect when 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.

The introduction also states the applicable broad definition of “employees,” which includes even independent contractors.

Responsibilities

The “Responsibilities” section of the plan provides space for the company to identify itself, its covered worksites, and the supervisory employees who will enforce compliance with the plan.

Exposure Controls During a Designated Outbreak

This section contains most of the operative provisions of the airborne infectious disease exposure prevention plan. It is further divided into two sub-sections labeled “minimum controls” and “advanced controls.”

“Minimum Controls During an Outbreak” fall into these categories:

General Awareness
“Stay at Home Policy”
Health Screening
Face Coverings
Physical Distancing
Hand Hygiene
Cleaning and Disinfection
“Respiratory Etiquette”
Special Accommodations for Individuals with Added Risk Factors

“Advanced Controls During an Outbreak” include the following:

Elimination (of risky activities)
Engineering Controls, such as ventilation, disinfection systems, barriers, and premises layout
Administrative Controls
Personal Protective Equipment

Some of these sub-component categories include space for the company to specify which controls it will use.

This section concludes with a statement that the company will obtain, store, and maintain the selected controls “so that they are ready for immediate use in the event of an infectious disease outbreak.” Though the plan itself would not take effect until there is such an outbreak, it seems employers must remain prepared at all times.

Housekeeping During a Designated Outbreak

This section addresses the basic cleaning components of preventing disease spread. In essence, it notes that high-touch objects and surfaces will be cleaned more often during an outbreak than lower-touch surfaces. And employers may need to make changes to regular cleaning schedules and procedures.

Infection Response During a Designated Outbreak

This brief section of the plan directs employers to have suspected infected people leave the workplace and follow government guidance in contacting impacted individuals.

Training and Information During a Designated Outbreak

This section seems to require employers to train employees on related issues both independent of and in the event of an outbreak of an airborne infectious disease.

As a general matter, employees must be trained on:

Existence and location of the Plan
Infectious disease Standard
Employer policies
Employee rights under the HERO Act

Additional training on all aspects of the airborne infectious disease exposure prevention plan is necessary in the event of an outbreak.

The model plan provides that the training will be “appropriate in content and vocabulary to your [i.e., employees’] educational level, literacy, and preferred language.”

Plan Evaluations During a Designated Outbreak

This plan section indicates that “the employer will review and revise the plan periodically, upon activation of the plan, and as often as needed to keep up-to-date with current requirements.” It then includes a blank table to fill in with any changes.

Retaliation Protections and Reporting of Any Violations

The model plan concludes with a statement prohibiting retaliation against an employee for exercising their rights under the plan. It also provides basic information about reporting violations.

What Your Company Must Do

First, you must have an airborne infectious disease exposure prevention plan in place by August 5, 2021. Then, you must post it in each worksite and distribute it to employees. If you have one, you must include the plan in your employee handbook.

According to the model plans, an employer would need to provide training to employees. However, this is not a statutory obligation. So, it seems the Department of Labor has found a way to mandate training on its own. Of course, any employer can forego the model plans. And the Airborne Infectious Disease Exposure Prevention Standard arguably does not require a training component until an outbreak exists. However, deviating from the model plans would necessitate negotiation with unions, if applicable, or, if not, the nebulous “meaningful participation” of employees.

Employers considering creating their own plan rather than adopting the relevant model plan should consult experienced labor and employment counsel.

June 30, 2021

NY HERO Act Amendments Reduce Employer Burdens

When Governor Cuomo originally signed the New York HERO Act into law, he indicated he expected the Legislature to make changes before the effective date to address concerns from the business community. On June 11, 2021, he approved the anticipated NY HERO Act amendments. While still creating new employee rights and employer obligations, the amendments provide some relief from originally overbroad legislation.

(Click here for a detailed analysis of the original legislation.)

We’ll look at the changes to the two distinct subjects of the NY HERO Act in turn.

Airborne Infectious Disease Exposure Prevention Plans

The NY HERO Act amendments include clarifications regarding the airborne infectious disease exposure prevention plans that employers must adopt.

Covered “Work Sites”

As amended, the law will take a more narrow view of what constitutes a “work site” where companies must police safety measures during a disease outbreak. The previous definition–“any physical space, including a vehicle, that has been designated as the location where work is performed”–is now limited by the phrase “over which an employer has the ability to exercise control.”

There is also a new (redundant?) proviso that “[t]he term shall not include a telecommuting or telework site unless the employer has the ability to exercise control of such site.”

Model Plans

The original legislation required the NYS Departments of Labor and Health to create model airborne infectious disease exposure prevention standards by industry. Some new wording expands on that requirement. It indicates that different standards may exist among “industries representing a significant portion of the workforce, or those with unique characteristics requiring distinct standards. . . .” The amendments also require “a general model airborne infectious disease exposure prevention standard applicable to all worksites not included in the specific industry standards.”

Implementation

The amendments expressly address important timing issues. The model standards are due by July 5, 2021, from the State. But employers will not have to implement them immediately. Instead, they will have 30 days after the applicable standard is available.

Once a company adopts the model plan (or its own version), it will have 30 days to provide a copy to every employee. Employers must also provide the plan to new hires at the beginning of employment.

Litigation and Penalties

The NY HERO Act amendments reduce the potential penalties for violations of the airborne infectious disease exposure prevention requirements. They also now require employees to give their employer notice of potential violations before commencing a lawsuit. In most cases, the employer will have 30 days to cure the alleged deficiency.

Workplace Safety Committees

The second component of the NY HERO Act gives employees a new right to form workplace safety committees that employers must recognize. The amendments prevent a broad interpretation that may have enabled workplace safety committees to control issues beyond health and safety.

Authorized Role

In addition to workplace health and safety tasks, the original NY HERO Act legislation would have permitted workplace safety committees to review any policy required by the New York Labor Law or Workers’ Compensation Law, without regard for whether the policy had anything to do with health or safety. This provision seemingly would have included vacation policies, sexual harassment policies, and paid family leave policies, among others. However, as amended, the law now limits the review to policies “relating to occupational safety and health.” It still remains to be seen, however, what that phrase will mean to the Department of Labor.

Multiple Worksites

In one respect the amendments potentially add more confusion than they do clarification. New language says that employers need only permit one workplace safety committee per worksite. This addition suggests that there may be multiple committees spread across worksites. Yet, “worksite” is not defined for this portion of the NY HERO Act. The definition in the airborne infectious disease exposure prevention section of the law doesn’t technically apply to the workplace safety committee section. And that definition probably wouldn’t be very helpful anyway. It suggests, for example, that each vehicle owned or controlled by the employer is a “work site.”

Quarterly Meetings

The law provides that workplace safety committees may meet at least once per quarter during work hours, presumably meaning with pay. In an apparent attempt to prevent abuses, the amendments say that the meetings “shall last no longer than two hours.”

The question remains, are the committees, therefore, only permitted to meet for two hours per quarter? Or multiple times per quarter, as long as no meetings last more than two hours?

Training

There’s also a new time limit on required training. The original legislation provided that committee “designees” could attend training “on the function of worker safety committees, rights established under this section, and an introduction to occupational safety and health” “without suffering a loss of pay.” The NY HERO Act amendments limit the training to four hours.

Many Unanswered Questions

Employers still can’t do much to begin complying with the NY HERO Act until the State issues model standards and additional regulatory guidance. But they must be prepared to act quickly when more information becomes available. The airborne infectious disease exposure prevention plan may need to be in place by early August. And employees can start workplace safety committees beginning November 1, 2021.

We’ll be presenting a complimentary webinar once the model airborne infectious disease exposure prevention standards are available. Register for our email newsletter to receive the webinar announcement and other updates regarding the New York HERO Act.

June 25, 2021

Mandatory Employee Vaccination? EEOC Updates Workplace Guidance

On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance for employers considering a mandatory employee vaccination requirement. The short answer? Your company probably can insist that most employees get vaccinated. But there may be limits and related compliance risks.

You Can Require On-Site Employees to Get the Shot

The new EEOC guidelines advise employers that they can, if they wish, require that their on-site workers be vaccinated against COVID-19 before returning to work.

If you decide to require your employees to get the vaccine, you will still need to keep a few things in mind.

First, the EEOC says that employers can only mandate vaccines for employees physically present at a worksite. If you still have staff working from home, and they don’t need to set foot in the office or other work location any time soon, then you shouldn’t require those workers to get the vaccine.

Second, the EEOC stresses that any vaccine mandate must comply with the ADA and Title VII. If you have an employee who wants to return to work but cannot receive the vaccine for health reasons or based on a sincerely held religious belief, you must consider reasonable accommodations for that person. For example, you may require that the unvaccinated employee wear a face mask or work physically distanced from other employees or customers. As is always the case, a worker requesting an accommodation doesn’t have to receive the exact one they want. The employer need only make an effective accommodation under the circumstances, if there is one that doesn’t create an undue hardship.

Be Cautious In Obtaining Medical Information

The EEOC says that asking for proof of vaccination is not a restricted disability-related inquiry under the ADA. But, remember, you must keep employee health information, including information on whether an employee has received the vaccination, confidential.

And you can’t require, or even incentivize, an employee to ensure that members of their family be vaccinated. By seeking proof of family member vaccination, you would be inquiring into an employee’s family health information. The Genetic Information Nondiscrimination Act (GINA) prohibits such inquiries for covered employers. The law allows some exceptions to this if your business administers vaccines to the general public and an employee’s family member chooses to get one from you. But for most companies, collecting any health information on the family members of its employees would violate GINA.

Incentives Are Fine (As Long As They Aren’t Coercive)

As far as the EEOC is concerned, you can offer all sorts of incentives to your employees to get the vaccine. Examples may include cash bonuses, gift cards, or various other prizes. (Note: There may be tax implications!) The EEOC also says that incentives can include penalties, although fewer companies are using this option.

Stay Tuned

Because everything having to do with COVID-19 has moved so quickly, expect further developments on mandatory employee vaccination issues. Remember that the EEOC only oversees specific federal discrimination laws. Other sources of law may have different implications. Individual states may interpret/apply existing laws differently or pass new restrictions surrounding this subject. But for now, the EEOC continues to endorse the view that as long as you follow the standard ADA, Title VII, and GINA rules, your company can do what it finds appropriate for the health of your workers and the safety of your business regarding COVID-19 vaccines. Just make sure you work with experienced employment counsel in implementing any vaccination requirements!

For more updates on this and other topics of interest to employers, sign up for our email newsletter!