NYS’s New Covid Rule – All Employers Must Comply With It

September 6, 2021

From Governor Hochul:

GOVERNOR KATHY HOCHUL ANNOUNCES DESIGNATION OF COVID-19 AS AN AIRBORNE INFECTIOUS DISEASE UNDER NEW YORK STATE’S HERO ACT

Designation by State Department of Health Requires All Employers to Implement Workplace Safety Plans to Help Protect Workers from COVID-19

Law Protects Employees from Retaliation for Making a Complaint About Employer’s Failure to Comply with the Law or the Adopted Plan

Governor Kathy Hochul today announced that the commissioner of health has designated COVID-19 a highly contagious communicable disease that presents a serious risk of harm to the public health under New York State’s HERO Act, which requires all employers to implement workplace safety plans in the event of an airborne infectious disease, helping to prevent workplace infections. The NY HERO Act mandates extensive new workplace health and safety protections in response to the COVID-19 pandemic. Under the law, all employers are required to adopt a workplace safety plan, and implement it for all airborne infectious diseases designated by the New York State Department of Health. Employers can adopt a model safety plan as crafted by the New York State Department of Labor, or develop their own safety plan in compliance with HERO Act standards.

“While we continue to increase our vaccination numbers, the fight against the Delta variant is not over, and we have to do everything we can to protect our workers,” Governor Hochul said. “This designation will ensure protections are in place to keep our workers safe and support our efforts to combat the virus and promote health and safety.”

The HERO Act’s purpose is to ensure that businesses are prepared with protocols and resources to protect their employees and the public from the spread of airborne infectious diseases, like COVID’s Delta variant.

Under the HERO Act, the DOL in consultation with the DOH has developed a new Airborne Infectious Disease Exposure Prevention Standard, a Model Airborne Infectious Disease Exposure Prevention Plan, and various industry-specific model plans for the prevention of airborne infectious disease. Additional information and industry-specific templates for employers are available on the DOL’s website.

The plans adopted by employers must address a number of safety measures, including but not limited to: employee health screenings, masking and social distancing requirements, workplace hygiene stations, workplace cleaning protocol, quarantine protocol, and building airflow technology.

Employers are required to distribute their work safety plan to all employees and post it in a visible and prominent location within each worksite.

Additionally, the HERO Act includes anti-retaliation protections for employees which prohibit discrimination or adverse actions taken against an employee for following the requirements of these plans, reporting concerns on the implementation of a plan, or refusing to work.

From The State Labor Dept:

NY HERO ACT
Model Airborne Infectious Disease
Exposure Prevention Plan
The purpose of this plan is to protect employees against exposure and disease during an airborne infectious disease outbreak. This plan goes into effect when an airborne infectious disease is designated by the New York State Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health. This plan is subject to any additional or greater requirements arising from a declaration of a state of emergency due to an airborne infectious disease, as well as any applicable federal standards.

Employees should report any questions or concerns with the implementation this plan to the designated contact.
This plan applies to all “employees” as defined by the New York State HERO Act, which means any person providing labor or services for remuneration for a private entity or business within the state, without regard to an individual’s immigration status, and shall include part-time workers, independent contractors, domestic workers, home care and personal care workers, day laborers, farmworkers and other temporary and seasonal workers.

The term also includes individuals working for digital applications or platforms, staffing agencies, contractors or
subcontractors on behalf of the employer at any individual work site, as well as any individual delivering goods or transporting people at, to or from the work site on behalf of the employer, regardless of whether delivery or transport is conducted by an individual or entity that would otherwise be deemed an employer under this chapter.

The term does not include employees or independent contractors of the state, any political subdivision of the state, a public authority, or any other governmental agency or instrumentality.

As of the date of the publication of this document, while the State continues to deal with COVID-19 and a risk still exists, no designation is in effect at this time. Please check the websites of Departments of Health and Labor for up to date information on whether a designation has been put into effect, as any such designation will be prominently displayed. No employer is required to put a plan into effect absent such a designation by the Commissioner of Health.

CONTENTS
I. RESPONSIBILITIES 2
II. EXPOSURE CONTROLS DURING A DESIGNATED OUTBREAK 2
A. Minimum Controls During an Outbreak 2
B. Advanced Controls During an Outbreak 4
C. Exposure Control Readiness, Maintenance and Storage: 6
III. HOUSEKEEPING DURING A DESIGNATED OUTBREAK 7
IV. INFECTION RESPONSE DURING A DESIGNATED OUTBREAK 7
V. TRAINING AND INFORMATION DURING A DESIGNATED OUTBREAK 7
VI. PLAN EVALUATIONS DURING A DESIGNATED OUTBREAK 8
VII. Retaliation Protections and Reporting of Any Violations 9
2
I.
RESPONSIBILITIES
This plan applies to all employees of , and [all]/[the following work sites]:
This plan requires commitment to ensure compliance with all plan elements aimed at preventing the spread of infectious disease. The following supervisory employee(s) are designated to enforce compliance with the plan. Additionally, these supervisory employees will act as the designated contacts unless otherwise noted in this plan:
Name
Title
Location
Phone
II.
EXPOSURE CONTROLS DURING A DESIGNATED OUTBREAK
A.
MINIMUM CONTROLS DURING AN OUTBREAK
During an airborne infectious disease outbreak, the following minimum controls will be used in all areas of the worksite:
1. General Awareness: Individuals may not be aware that they have the infectious disease and can spread it to others. Employees should remember to:

Maintain physical distancing;

Exercise coughing/sneezing etiquette;

Wear face coverings, gloves, and personal protective equipment (PPE), as appropriate;

Individuals limit what they touch;

Stop social etiquette behaviors such as hugging and hand shaking, and

Wash hands properly and often.
2. “Stay at Home Policy”: If an employee develops symptoms of the infectious disease, the employee should not be in the workplace. The employee should inform the designated contact and follow New York State Department of Health (NYSDOH)and Centers for Disease Control and Prevention (CDC) guidance regarding obtaining medical care and isolating.
3. Health Screening: Employees will be screened for symptoms of the infectious disease at the beginning of their shift. Employees are to self-monitor throughout their shift and report any new or emerging signs or symptoms of the infectious disease to the designated contact. An employee showing signs or symptoms of the infectious disease should be removed from the workplace and should contact a healthcare professional for instructions. The health screening elements will follow guidance from NYSDOH and CDC guidance, if available.
3 4.
Face Coverings: To protect your coworkers, employees will wear face coverings throughout the workday to the greatest extent possible. Face coverings and physical distancing should be used together whenever possible.
The face covering must cover the nose and mouth, and fit snugly, but comfortably, against the face. The face covering itself must not create a hazard, e.g. have features could get caught in machinery or cause severe fogging of eyewear. The face coverings must be kept clean and sanitary and changed when soiled, contaminated, or damaged.
5. Physical Distancing: Physical distancing will be followed as much as feasible. Avoid unnecessary gatherings and maintain a distance of at least six feet (or as recommended by the NYSDOH/CDC for the infectious agent) from each other. Use a face covering when physical distance cannot be maintained.
In situations where prolonged close contact with other individuals is likely, use the following control methods: (Note to employer: Check off the controls you intend to use and add any additional controls not listed here.)

restricting or limiting customer or visitor entry;

limiting occupancy;

allowing only one person at a time inside small enclosed spaces with poor ventilation;

reconfiguring workspaces;

physical barriers;

signage;

floor markings;

telecommuting;

remote meetings;

preventing gatherings;

restricting travel;

creating new work shifts and/or staggering work hours;

adjusting break times and lunch periods;

delivering services remotely or through curb-side pickup;

•6. Hand Hygiene: To prevent the spread of infection, employees should wash hands with soap and water for at least 20 seconds or use a hand sanitizer with at least 60% alcohol to clean hands BEFORE and AFTER:

Touching your eyes, nose, or mouth;

Touching your mask;

Entering and leaving a public place; and

Touching an item or surface that may be frequently touched by other people, such as door handles, tables, gas pumps, shopping carts, or electronic cashier registers/screens.
Because hand sanitizers are less effective on soiled hands, wash hands rather than using hand sanitizer when your hands are soiled.
7. Cleaning and Disinfection: See Section V of this plan.
8. “Respiratory Etiquette”: Because infectious diseases can be spread by droplets expelled from the mouth and nose, employees should exercise appropriate respiratory etiquette by covering nose and mouth when sneezing, coughing or yawning.
9.
Special Accommodations for Individuals with Added Risk Factors: Some employees, due to age, underlying health condition, or other factors, may be at increased risk of severe illness if infected. Please inform your supervisor or the HR department if you fall within this group and need an accommodation.
4 B. ADVANCED CONTROLS DURING AN OUTBREAK
For activities where the Minimum Controls alone will not provide sufficient protection for employees, additional controls from the following hierarchy may be necessary. Employers should determine if the following are necessary:
1. Elimination: Employers should consider the temporary suspension or elimination of risky activities where adequate controls could not provide sufficient protection for employees.
2. Engineering Controls: Employers should consider appropriate controls to contain and/or remove the infectious agent, prevent the agent from being spread, or isolate the worker from the infectious agent. Examples of engineering controls include: i. Mechanical Ventilation:
a. Local Exhaust Ventilation, for example:

Ventilated booths (lab hoods);

Kitchen Vents; and

Vented biosafety cabinets.

b. General Ventilation, for example:

Dedicated ventilation systems for cooking areas, malls, atriums, surgical suites, manufacturing, welding, indoor painting, laboratories, negative pressure isolation rooms;

Increasing the percentage of fresh air introduced into air handling systems;

Avoiding air recirculation;

Using higher-efficiency air filters in the air handling system;

If fans are used in the facility, arrange them so that air does not blow directly from one worker to another; and
ii.
Natural Ventilation, for example:

Opening outside windows and doors to create natural ventilation; and

Opening windows on one side of the room to let fresh air in and installing window exhaust fans on the opposite side of the room so that they exhaust air outdoors. (Note: This method is appropriate only if air will not blow from one person to another.)
iii.
Install automatic disinfection systems (e.g., ultraviolet light disinfection systems).
iv.
Install cleanable barriers such as partitions and/or clear plastic sneeze/cough guards.
v.
Change layout to avoid points or areas where employees may congregate (e.g., install additional timeclocks).
5
Subject to changes based on operations and circumstances surrounding the infectious disease, engineering controls that are anticipated to be used are listed in the following table:
Engineering Controls Utilized/Location:
Note to Employer: One of the best ways to reduce exposure to infectious agents is to improve ventilation. The aim is to deliver more “clean air” into an occupied area and exhaust the contaminated air to a safe location. In some cases, the air may have to be filtered before it enters the work area and/or before it is exhausted. Direct the contaminated air away from other individuals and from the building’s fresh air intake ports. Consult your ventilation system’s manufacturer or service company to determine if improvements are possible for your system.
3. “Administrative Controls” are policies and work rules used to prevent exposure. Examples include:
• Increasing the space between workers;
• Slowing production speed to accommodate fewer workers at a time;
• Disinfecting procedures for specific operations;
• Not shaking out soiled laundry;
• Employee training;
• Identify and prioritize job functions that are essential for continuous operations;
• Cross-train employees to ensure critical operations can continue during worker absence;
• Limit the use of shared workstations;
• Post signs reminding employees of respiratory etiquette, masks, handwashing;
• Rearrange traffic flow to allow for one-way walking paths;
• Provide clearly designated entrance and exits;
• Provide additional short breaks for handwashing and cleaning;
• Establishing pods or cohorts working on same shift;
6 Subject to changes based on operations and circumstances surrounding the infectious disease, the following specific administrative controls are anticipated to be used:
Administrative Controls Utilized/Location:
4. 10. Personal Protective Equipment (PPE) are devices like eye protection, face shields, respirators , , and gloves that protect the wearer from infection. PPE will be provided, used and maintained in a sanitary and reliable condition at no cost to the employee. The PPE provided to an employee will be based on a hazard assessment for the workplace.
PPE Required – Activity Involved/Location:
1 The use of respiratory protection, e.g. an N95 filtering facepiece respirator, requires compliance with the OSHA Respiratory Protection Standard 29 CFR 1910.134 or temporary respiratory protection requirements OSHA allows for during the infectious disease outbreak.
2 Respirators with exhalation valves will release exhaled droplets from the respirators. Respirators are designed to protect the wearer. Surgical masks and face coverings, which are not respirators, are designed to protect others, not the wearer.
C. EXPOSURE CONTROL READINESS, MAINTENANCE AND STORAGE:
The controls we have selected will be obtained, properly stored, and maintained so that they are ready for immediate use in the event of an infectious disease outbreak and any applicable expiration dates will be properly considered.
7 III. HOUSEKEEPING DURING A DESIGNATED OUTBREAK
A. Disinfection Methods and Schedules
Objects that are touched repeatedly by multiple individuals, such as door handles, light switches, control buttons/levers, dials, levers, water faucet handles, computers, phones, or handrails must be cleaned frequently with an appropriate disinfectant. Surfaces that are handled less often, or by fewer individuals, may require less frequent disinfection.
The disinfection methods and schedules selected are based on specific workplace conditions.

The New York State Department of Environmental Conservation (NYSDEC)and the Environmental Protection Agency (EPA) have compiled lists of approved disinfectants that are effective against many infectious agents (see dec.ny.gov and epa.gov/pesticide-registration/selected-epa-registered-disinfectants). Select disinfectants based on NYSDOH and CDC guidance and follow manufacturer guidance for methods, dilution, use, and contact time.
B. Adjustments to Normal Housekeeping Procedures
Normal housekeeping duties and schedules should continue to be followed during an infectious disease outbreak, to the extent practicable and appropriate consistent with NYSDOH and/or CDC guidance in effect at the time. However, routine procedures may need to be adjusted and additional cleaning and disinfecting may be required.
Housekeeping staff may be at increased risk because they may be cleaning many potentially contaminated surfaces. Some housekeeping activities, like dry sweeping, vacuuming, and dusting, can resuspend into the air particles that are contaminated with the infectious agent. For that reason, alternative methods and/or increased levels of protection may be needed.
Rather than dusting, for example, the CDC recommends cleaning surfaces with soap and water before disinfecting them. Conducting housekeeping during “off” hours may also reduce other workers’ exposures to the infectious agent. Best practice dictates that housekeepers should wear respiratory protection. See cdc.gov for more guidance.
C. If an employee develops symptoms of the infectious disease at work, it is ideal to isolate the area in accordance with guidance issued by NYSDOH or the CDC, before cleaning and disinfecting the sick employee’s work area. This delay will allow contaminated droplets to settle out of the air and the space to be ventilated.
D. As feasible, liners should be used in trash containers. Empty the containers often enough to prevent overfilling. Do not forcefully squeeze the air out of the trash bags before tying them closed. Trash containers may contain soiled tissue or face coverings.

IV. INFECTION RESPONSE DURING A DESIGNATED OUTBREAK
If an actual, or suspected, infectious disease case occurs at work, take the following actions:

Instruct the sick individual to wear a face covering and leave the worksite and follow NYSDOH/CDC guidance.

Follow local and state authority guidance to inform impacted individuals.
V.
TRAINING AND INFORMATION DURING A DESIGNATED OUTBREAK
A.
will verbally inform all employees of the existence and location of this Plan, the circumstances it can be activated, the infectious disease standard, employer policies, and employee rights under the HERO Act. (Note: training need not be provided to the following individuals: any individuals working for staffing agencies, contractors or subcontractors on behalf of the employer at any individual work site, as well as any individual delivering goods or transporting people at, to or from the work site on behalf of the employer, where delivery or transport is conducted by an individual or entity that would otherwise be deemed an employer under this chapter)
8 B. When this plan is activated, all personnel will receive training which will cover all elements of this plan and the following topics:
1. The infectious agent and the disease(s) it can cause;
2. The signs and symptoms of the disease;
3. How the disease can be spread;
4. An explanation of this Exposure Prevention Plan;
5. The activities and locations at our worksite that may involve exposure to the infectious agent;
6. The use and limitations of exposure controls
7. A review of the standard, including employee rights provided under Labor Law, Section 218-B.
C. The training will be
1.
Provided at no cost to employees and take place during working hours. If training during normal work hours is not possible, employees will be compensated for the training time (with pay or time off);
2.
Appropriate in content and vocabulary to your educational level, literacy, and preferred language; and
3.
Verbally provided in person or through telephonic, electronic, or other means.
VI.
PLAN EVALUATIONS DURING A DESIGNATED OUTBREAK
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. Document the plan revisions below:
Plan Revision History
Date
Participants
Major Changes
Approved By
9
VII.
RETALIATION PROTECTIONS AND REPORTING OF ANY VIOLATIONS
No employer, or his or her agent, or person, , acting as or on behalf of a hiring entity, or the officer or agent of any entity, business, corporation, partnership, or limited liability company, shall discriminate, threaten, retaliate against, or take adverse action against any employee for exercising their rights under this plan, including reporting conduct the employee reasonably believes in good faith violates the plan or airborne infectious disease concerns to their employer, government agencies or officials or for refusing to work where an employee reasonably believes in good faith that such work exposes him or her, other workers, or the public to an unreasonable risk of exposure, provided the employee, another employee, or representative has notified the employer verbally or in writing, including electronic communication, of the inconsistent working conditions and the employer’s failure to cure or if the employer knew or should have known of the consistent working conditions.
Notification of a violation by an employee may be made verbally or in writing, and without limitation to format including electronic communications. To the extent that communications between the employer and employee regarding a potential risk of exposure are in writing, they shall be maintained by the employer for two years after the conclusion of the designation of a high risk disease from the Commissioner of Health, or two years after the conclusion of the Governor’s emergency declaration of a high risk disease. Employer should include contact information to report violations of this plan and retaliation during regular business hours and for weekends/other non-regular business hours when employees may be working.