On September 23, 2021, New York State issued Information and FAQs (the “FAQs”)[1] regarding the New York State Health and Essential Rights Act (“HERO Act”), as well as updated model workplace exposure prevention plans.  As we previously reported, the New York Commissioner of Health designated COVID-19 as a covered “highly contagious communicable disease” under the HERO Act, which triggered requirements for employers with worksites in New York to take certain actions, including, but not limited to, implementing worksite prevention exposure plans.

The New York Department of Labor (“NYDOL”) issued an updated general model worksite prevention exposure plan, along with updated model industry-specific worksite prevention exposure plans (“Model Plans”), which reflect the following two substantive modifications:

• The Model Plans now distinguish between employers that have enacted mandatory vaccination policies and those that have not with regard to face covering requirements. Namely, the Model Plans provide that in workplaces “where all individuals on premises, including but not limited to employees, are fully vaccinated . . . [a]appropriate face coverings are recommended, but not required, consistent with State Department of Health and Centers for Disease Control and Prevention applicable guidance, as of September 16, 2021.”  For all other workplaces, employees are required to wear appropriate face coverings “in accordance with guidance from State Department of Health or the Centers for Disease Control and Prevention, as applicable.”  Previously, the Model Plans were much more stringent in requiring employees to wear face coverings “throughout the workday to the greatest extent possible.”
• The Model Plans were updated to remove language regarding avoiding unnecessary gatherings and using face coverings when social distancing was not possible. Now, the Model Plans state that, “[p]hysical distancing will be used to the extent feasible, as advised by guidance from State Department of Health or the Centers for Disease Control and Prevention, as applicable.”

While the FAQs largely reiterate the statutory language of the HERO Act, the FAQs do shed light on the following requirements of the law:

• According to the HERO Act, by November 1, 2021, covered employers with at least ten (10) employees must “permit employees to establish and administer a joint labor-management workplace safety committee.” Prior to the new guidance, it was unclear whether an employer had to take affirmative steps to create a workplace safety committees or passively allow employees to create such a committee.  The FAQs state that, “[t]he law requires employers with 10 or more employees to establish and administer a joint labor-management workplace safety committee[,]” which confirms that employers must affirmatively create these workplace safety committees to comply with the law.
• Under the HERO Act, employers that do not choose to adopt one of the applicable model plans issued by the State must develop an “alternative plan” pursuant to an “agreement with the collective bargaining representative, if any, or with meaningful participation of employees where there is no collective bargaining representative.” This created many questions regarding to what extent (if any) an employer may alter the applicable model plan before it constituted an “alternative plan[,]” triggering the employer’s duty to involve employees in the adoption of the plan.  To address this ambiguity, the FAQs provide that “[m]odifications by the employer in the Controls or Advance Controls sections of the Department of Labor’s General Industry Template do not necessarily constitute an ‘alternative plan’ . . . and likely do not require additional employee participation.”  That being said, the FAQs set forth that any additional amendments that “go beyond the open fields of such template likely do constitute an ‘alternative plan’ requiring employee review and/or participation.”

Importantly, the FAQs note that the NYDOL will be promulgating regulations regarding the HERO Act in the future.  As a result, employers with worksites in New York should closely monitor any further developments and speak to counsel to ensure compliance with the HERO Act.