The New York State Health and Essential Rights Act ("HERO Act") was signed into law on May 5, 2021 and subsequently amended on July 14, 2021. The New York State Department of Labor website states the purpose of the HERO Act is "to protect employees against exposure and disease during a future airborne infectious disease outbreak." The HERO Act requires all employers to implement workplace safety plans in the event of an airborne infectious disease. On September 6, 2021, New York governor Kathy Hochul announced the Commissioner of Health has designated COVID-19 as a qualifying airborne infectious disease under the HERO Act.

The New York State Department of Labor ("NYSDOL") and the New York State Department of Health ("NYSDOH") have developed a sample "Airborne Disease Exposure Prevention Plan". Employers can adopt the model plan provided by the NYSDOL or establish their own plan that meets the minimum requirements under the standard developed by the NYSDOL, in consultation with the NYSDOH. Employers who choose to develop their own plan or use an alternative plan must adopt the plan through an agreement with the collective bargaining representative, if there is one, or with the "meaningful participation of employees." The plan must be tailored to the specific hazards of the employer's industry and worksite.

The Airborne Infectious Disease Exposure Prevention Standard (the "Standard") applies to employers with worksites located in New York State, and only when an airborne infectious agent or disease is designated by the Commissioner of Health as a "highly contagious communicable disease that presents a serious risk of harm to the public health." The designation of COVID-19 as such now requires employers to activate and review their prevention plans to ensure they are up to date with current COVID-19 related information. 

The Standard requires employers to establish and implement a written exposure prevention plan that contains various exposure controls. These controls include: (i) Health Screening; (ii) Face Coverings; (iii) Physical Distancing; (iv) Hand Hygiene Facilities; (v) Cleaning and Disinfection; and (vi) Personal Protective Equipment. The Standard goes into more specific detail regarding each control.

When the exposure prevention plan is activated during the designation period, the employer must provide all personnel with training on the specific elements of the plan, as well as the following topics: (i) the infectious agents and the disease(s) it can cause; (ii) the signs and symptoms of the disease; (iii) how the disease can be spread; (iv) an explanation of the Exposure Prevention Plan; (v) the activities and locations at the worksite that may involve exposure to the infectious agent; (vi) the use and limitation of exposure controls; and (vii) a review of the standard, including employee rights provided under Labor Law, Section 218-b, which are described below. Employers must provide this training to employees verbally in person or via electronic, or other means, at no cost to the employees, and tailored to the employees' education level, literacy, and preferred language. 

The exposure prevention plan must be available, upon request, to all employees, employee representatives, collective bargaining representatives, independent contracts, the NYSDOL and the NYSDOH. During the designation period, the employer must post a copy of the adopted exposure prevention plan in a visible and prominent location at the worksite and ensure all employees have access to a copy of the plan during all work shifts. 

During the time which the designation by the Commissioner of Health remains in effect, the employer must ensure compliance with the exposure prevention plan at the worksite by assigning enforcement responsibilities, ensuring adequate enforcement of the plan, monitoring and maintaining exposure controls, and updating the plan based on new information and guidance provided by the NYSDOH and the Centers for Disease Control and Prevention. Employers should designate one or more supervisory employees to ensure and enforce compliance with the plan. 

Employees are entitled to the following rights: (i) to report violations under Section 218-b of the Labor Law or the exposure prevention plan adopted by their employer to any state, local or federal government entity, public officer or elected official, (ii) to report an airborne infectious disease concern to their employer, state, local or federal government entity, public officer or elected official; or (iii) to refuse to work if the employee reasonably believes, in good faith, that such work will expose the employee, other workers, or the public to an unreasonable risk of exposure to the disease due to the working conditions. Employees who exercise their rights and report any violations of Section 218-b of the Labor Law or the specific exposure prevention plan adopted by the employer are entitled to protection against discrimination, threats, retaliation, or adverse action taken against them for reporting violations.

Employers are required to maintain any records of communications between the employer and employee pertaining to potential risk of exposure for two years after the designation period has ended.