On September 6, 2021, Governor Kathy Hochul announced that the New York State Commissioner of Health designated COVID-19 as “as a highly contagious communicable disease that presents a serious risk of harm to the public health” under the New York Health and Essential Rights Act (the “HERO Act”) given the spread of the Delta variant across New York State. Therefore, private sector employers in New York State must now activate their airborne infectious disease exposure prevention plans, which should have been issued and communicated to employees by September 4, 2021.

In accordance with the airborne infectious disease exposure prevention standard issued by New York State, employers should now:

1. Immediately review their exposure prevention plan and update the plan, if necessary, to ensure that it incorporates current information related to COVID-19;
2. Finalize and promptly activate their exposure prevention plan;
3. Provide a verbal review of the airborne infectious disease exposure prevention plan; and
4. Provide employees with a copy of the airborne disease exposure prevention plan.

While COVID-19 remains designated as a highly contagious communicable disease that presents a serious risk of harm to the public health and employers exposure prevention plans are activated, employers must designate at least one supervisory employee to ensure compliance with the employer’s exposure prevention plan and any other guidance related to COVID-19.

Further, employers must ensure that their exposure prevention plans are adhered to by:

1. Assigning enforcement responsibility and ensuring adequate enforcement of the employer’s exposure prevention plan takes place;
2. Monitoring and maintaining exposure controls; and
3. Regularly looking for updated information and guidance provided by the New York State Department of Health and the Centers for Disease Control and Prevention related to COVID-19.

For more information about the HERO Act, please review our prior alerts on this new legislation:

• Labor & Employment Law Alert: New York State Department of Labor Issues Guidance on HERO Act
• Labor & Employment Law Alert: New York State Department of Labor Passes Amendments to the HERO Act 
• Labor & Employment Law Alert: Private Sector Employers Must Prepare for Requirements Imposed by the New York State HERO Act