Tag: safety plan

Airborne Infectious Disease Exposure Prevention Plans

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:

  1. General Awareness
  2. “Stay at Home Policy”
  3. Health Screening
  4. Face Coverings
  5. Physical Distancing
  6. Hand Hygiene
  7. Cleaning and Disinfection
  8. “Respiratory Etiquette”
  9. 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.

Reopening New York Part II Webinar

Reopening New York, Part II (Webinar Recap)

On June 18, 2020, I presented a complimentary webinar called “Reopening New York, Part II”. For those who couldn’t attend the live webinar, we’re happy to make it available for you to watch at your convenience.

In the webinar, we discuss:

  • Industry-Specific Reopening Guidelines
  • Employee COVID-19 Screening
  • Mandatory Safety Plans
  • Recent Updates and Planning Ahead

Most of New York has reached Phase 3 of its 4-phased business reopening plan. New York City lags behind the rest of the State. In addition to the identified phases, New York has issued statewide guidelines for some activities.

The State’s industry-specific guidelines have been revised even for businesses eligible to open in earlier phases. Companies and other organizations must continue to monitor the requirements and make adjustments to their operations. If they don’t, there could be severe consequences, including having their business shut down.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “Reopening New York, Part II”

Even if you watched our first webinar in this series, there have been important updates since then. We address many of those in this webinar.

Make sure you’re aware of the latest guidance for your organization. For example, the list of COVID-19 symptoms has expanded. The rules for how to handle positive answers to your daily screening questionnaire have changed. You must have a “central point of contact” to oversee those questionnaires. And, you can’t require employees to submit coronavirus antibody results.

Plus, find out if you have all the necessary signs up in your building or worksite!

Whether your company has reopened or not, and regardless of what phase your industry is in, all New York businesses and organizations should be aware of the State’s reopening guidelines and the related information presented in this webinar.

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Reopening New York - Phase 2

Reopening New York – Phase 2

The federal government put the individual states in charge of reopening after coronavirus shutdowns. In New York, Governor Andrew Cuomo divided New York into 10 regions and assigned a Control Room to oversee the reopening efforts in each Region. Some of those regions entered Phase 2 of the reopening plan on May 26, 2020. The State issued industry-specific guidelines for the businesses that can open or expand operations in this next phase.

Click here for more information about Phase 1 of New York’s reopening plan.

Phase 2 Industries

Phase 2 includes these businesses:

However, the following industries will remain closed in Phase 2:

  • Malls; specifically, any indoor common portions of retail shopping malls with 100,000 or more square feet of retail space available for lease; however, any stores located within shopping malls, which have their own external entrances open to the public, separate from the general mall entrance (e.g., strip malls), may open
  • Dine-in and on-premise restaurant or bar service, excluding take-out or delivery for off-premise consumption
  • Large gatherings/event venues, which include establishments that host concerts, conferences, or other in-person performances or presentations in front of an in-person audience
  • Gyms, fitness centers, and exercise classes, except for remote or streaming services
  • Video lottery and casino gaming facilities
  • Movie theaters, except drive-ins
  • Places of public amusement, whether indoors or outdoors, including but not limited to, locations with amusement rides, carnivals, amusement parks, water parks, aquariums, zoos, arcades, fairs, children’s play centers, funplexes, theme parks, bowling alleys, family and children’s attractions

Phase 2 Reopening Guidelines

New York released industry-specific guidance for Phase 2 of the reopening plan on the State’s NY Forward website. The site includes “Summary Guidelines” and “Detailed Guidelines” for each covered industry segment. The documents contain information on how businesses should reopen. Specifically, how to operate in a manner that will minimize the transmission of COVID-19 and adequately protect employees, customers, and vendors from potential exposure. The guidance incorporates CDC and OSHA guidance. The NYS guidelines also set minimum requirements that businesses must implement before reopening. Companies are free to adopt additional health and safety measures to protect people in their offices, stores, and other places of business.

Mandatory Safety Plans

New York has provided a template safety plan that companies can use as a starting point. Upon completion, each business must post its COVID-19 safety plan “conspicuously” in the workplace. Companies don’t have to submit their individual safety plans to any governmental agency, but must make them available if an authorized agency conducts an inspection.

Review of Industry-Specific Guidelines and Affirmation of Receipt

Any business that intends to reopen under Phase 2, or that remained open as an essential business but fits into a Phase 2 industry category, must affirm that it has read and understood the guidelines and will implement them.

Common Phase II Health and Safety Requirements

Although the industry guidelines vary, most contain similar basic requirements. For example, businesses must:

  • Provide all workers with an acceptable face covering at no cost to the employees.
  • Adhere to hygiene, cleaning, and disinfecting requirements from the CDC and Department of Health.
  • Maintain cleaning logs on site that document the date, time, and scope of cleaning.
  • Limit occupancy to 50% of building capacity, including employees, customers, and vendors.
  • Provide and maintain hand hygiene stations in the office, including handwashing with soap, running warm water, and disposable paper towels, as well as an alcohol-based hand sanitizer containing 60% or more alcohol for areas where handwashing is not feasible.
  • Limit occupancy of tightly confined spaces, like elevators, stock rooms, or behind cash registers, to only one person at a time, unless all individuals are wearing face coverings.
  • Post social distancing markers using tape or signs that denote 6 ft. of spacing in commonly used and other applicable areas.
  • Limit the sharing of objects and discourage touching of shared surfaces.
  • Place hand sanitizer throughout the office in convenient locations for use by employees and customers.
  • Post signage to remind personnel and customers to adhere to proper hygiene, social distancing, appropriate PPE, and cleaning and disinfecting protocols.
  • Maintain a continuous log of workers and visitors who have close contact with other individuals at the worksite or area.
  • Implement mandatory health screening and assessment (e.g., questionnaire, temperature check) for employees, contractors, and other visitors, asking about (1) COVID-19 symptoms in past 14 days, (2) positive COVID-19 test in past 14 days, and (3) close contact with confirmed or suspected COVID-19 cases in the past 14 days. Responses must be reviewed and documented daily.
  • Have a plan for cleaning, disinfecting, and contact tracing in the event of a positive case.

Top Priorities for Phase 2 Businesses

If your business falls into a Phase 2 industry, you must review the relevant guidance documents. They are available at https://forward.ny.gov/industries-reopening-phase.

Remember, your company must submit the compliance affirmation and prepare and post a written safety plan. To do so, you must evaluate the realities of your operations and modify them accordingly. As the State documents emphasize, these are only the legally-mandated minimum requirements. Government officials may shut you down or take other action if you are not complying. However, satisfying the State’s guidelines does not guarantee that the coronavirus cannot be spread in your facilities. Moreover, it likely will not provide an absolute defense to possible claims by employees or other individuals that your business is unsafe or that the company is responsible for them contracting COVID-19.

The State’s guidelines are not close to normal operations for most businesses. And your company must continue to monitor the latest developments and adapt accordingly. There is currently no timetable for how long these extensive restrictions will remain in place. For example, the start of Phase 2 has not lifted the restrictions on Phase 1 businesses.

 

Horton Law continues to monitor the evolving requirements for all New York businesses. Sign up for our email newsletter to receive our latest blog posts and announcements of upcoming free webinars on this topic. You can also follow us on LinkedIn for even more frequent updates.