There is no doubt that the COVID-19 pandemic changed a lot of things as we knew them; remote work became largely emphasized and nations have become more careful about public health. So it is not at all surprising that in response to this life-altering global pandemic and preparation for possible future health and safety threats, the State of New York has deemed it fit to sign a new law. Signed into law on the 5th of May, 2021 the New York Health and Essential Rights Act or the NY HERO ACT seeks to create a safe and healthy work environment for NY employees such that they are adequately protected against exposure in the event of a future airborne infectious disease outbreak.
In furtherance of this aim, the New York State Department of Labor (NYS DOL) and the NYS Department of Health have come together to launch a new Airborne Infectious Disease Exposure Prevention Standard, a Model Airborne Infectious Disease Exposure Prevention Plan as well as Industry-specific Model Plans for the Prevention of Airborne Infectious Disease.
Employers of labor with their worksites in New York are thus mandated to adopt the Exposure Prevention Policy that is best suited for their industry, whether as provided by NYS DOL or a better alternative designed by them. Meanwhile, the Prevention Plans only become effective upon the occurrence of an airborne disease that has been declared by the New York State Commissioner of Health to be highly contagious and poses a threat to public health.
The Airborne Infectious Disease Exposure Prevention Standard Plan
The provision of this Plan applies to every employer of labor with a worksite in the State of New York and their employees with the exclusion of employees or independent contractors of public officers or those within the coverage of a temporary or permanent standard adopted by the Occupational Safety and Health Administration.
After a highly infectious airborne disease has been designated as posing a threat to public health by the Commissioner of Health, the Exposure Prevention Standard Plan proposes two kinds of control measures to be taken to ensure that the outbreak is properly curtailed;
- Minimum Control Measures
- Advanced Control Measures
Minimum Control Measures
The primary step to take in a work environment when an airborne disease outbreak occurs is to ensure general awareness by making a public announcement so employees can be aware and take precautionary measures like washing their hands properly and often, stopping social etiquettes like hugging and handshaking, observing coughing and sneezing etiquettes by covering their mouths. This is to ensure that the infection is not transferred through droplets expelled from the mouth and nose.
Afterward, employees will be screened for symptoms of the disease, and those who are already infected will be removed from the worksite and expected to observe a stay-at-home policy and follow the prescribed guidance regarding quarantine and obtaining medical care. Elderly employees will also fall into this category of isolation because their age makes them prone to disease infection. They may also be provided accommodation
The rest of the employees who have not been affected by the disease will be expected to continue with the precautionary measures of protecting themselves by constantly wearing sanitary face coverings that must cover the nose and mouth, and fit snugly. They will also be expected to maintain social distancing as much as is possible; to keep at least six feet between themselves and the next person, wash their hands with soap and water intermittently, use alcohol-based hand sanitizers, pay extra caution to how they touch their faces and frequently touched surfaces such as door handles, tables, gas pumps, shopping carts.
It is not just enough for employees to observe these measures; third parties who visit the worksite must also observe the same. This can be done by creating physical barriers, floor markings, limiting occupancy of a room, providing wash hand basin or hand sanitizers at entrances and exits, etc. Physical contacts should be limited and avoided as much as possible and alternatives like remote meetings, delivering services remotely or through the curbside pickup, etc, should be considered.
Also, surfaces like doorknobs, control buttons, and computer keypads, etc that are usually touched by multiple individuals must be frequently disinfected with the prescribed disinfectant and methods. Dusty surfaces are recommended to be cleaned with soap and water before disinfection; this is to eliminate the risk of contaminated particles being re-suspended into the atmosphere. The same should be done to the work area of affected employees.
Advanced Control Measures
Due to the high contagiousness of airborne disease, the Minimum Controls may not suffice, and an Advanced Control Measure will need to be adopted to provide sufficient protection for employees.
First, employers should consider the temporary suspension or modification of activities or situations that may increase the susceptibility of employees contacting this disease. Some of these may include meetings in compact rooms, poorly ventilated waiting or dining areas, overwhelming work hours, etc. In place of this, appropriate controls can be made available to isolate the employees as much as possible by:
- Slowing production speed to accommodate fewer workers at a time;
- Providing mechanical ventilation like kitchen vents and ventilated booths, avoiding air recirculation, and dedicated ventilation systems for cooking areas, malls, and atriums,
- Rearranging traffic flow to allow for one-way walking paths;
- Placing a limit on the use of shared workstations
- Modifying the congregation areas of employees by changing the layout to one enforcing social distancing; and
- Depending on the level of risk in a work environment, employees should be provided with Personal Protective Equipment (PPE) devices like face shields, respirators, surgical masks, and gloves to protect themselves and others, at no cost to them.
As a matter of importance, every employer in the State of New York is required to educate their employees on the company’s Exposure Prevention Plan, the circumstances under which it can be activated, and essentially, the rights guaranteed under the HERO Act. The employees are also to be trained on the symptoms of the disease, how it can be communicated, precautionary measures to be taken, and other relevant information as provided by the Plan. This training does not attract extra costs to the employees and may be taken either during or outside of work hours.
And during the disease outbreak when the Plan is in effect, the employer is expected to review the Plan periodically to keep it updated to match the current requirements.
Again, when an employer has been notified of the poor working condition of the worksite and refuses to better the condition, employees may exercise their rights under this Plan and in good faith by:
- Reporting any conduct that is contrary to the Plan to the employer or any governmental bodies
- Refusing to work where they believe such work heightens the risk of their or the public’s exposure to the disease.
Infectious Disease Prevention Plan
Meanwhile, employers of labor in the State of New York may in the exercise of their freedom recognized under the HERO Act, choose to adopt their own Exposure Prevention Plan which will meet the standards of or be a better alternative to the Model Plan. Irrespective of the kind of Prevention Plan adopted though, the provisions of the Plan do not relieve employers of their state or federal mandate to prevent the spread of airborne infectious agent diseases to employees and third parties within the work environment.
The protection embedded in the provisions of the Infectious Disease Prevention Plan applies to every person that falls under the legal definition of an employee. For this purpose, an employee provides labor or services to legally recognized corporate entities for remuneration, whether they are part-time workers, independent contractors, domestic workers, day laborers, or other temporary and seasonal workers. This application is, however, to the exclusion of employees or independent contractors of the State or any of its subdivision, public offices, and governmental agencies.
This Prevention Plan is expected to contain proposed exposure controls, with its provisions being subject to additional requirements arising from a state of emergency declared due to an airborne infectious disease. Importantly, it may only be adopted after a consensus has been reached with the collective bargaining representative of the employees. The aim of this is to ensure that the proposed plan is tailored-fit to the hazard realities that exist in that specific industry and the work environment.
The Exposure Prevention Plan is expected to be reviewed and updated to reflect changing procedures that affect the risk of disease exposure. And upon verbal review of the Employer Policies, it should be incorporated with the Employees’ Rights. Any concern nursed by employees regarding the implementation of this Plan should be reported to the designated contact.
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Implementation of the Prevention Plan
As is applicable with the Standard Plan, the Exposure Prevention Plan only becomes effective upon the outbreak of an airborne infectious disease that has been declared by the Commissioner of Health as posing a risk to public health.
Primarily, the Prevention Plan must first be reviewed to ensure that it fits both the current reality of the employees in the work environment as well as the mandatory requirements issued by the government. Afterward, it will be set in motion and the verbal review will be provided as required.
Employees must be issued a copy of the Plan within 30 days after it has been implemented or within 15 days of reopening after business closure due to an airborne infectious period. It must be written in English or the employees’ primary language if other than English. A copy of the Plan must also be pasted in an open and easily accessible location on the worksite except where the worksite is a vehicle.
Making the Plan accessible to employees is not enough in itself; employers must also make sure that the words and spirit of the Plan are strictly adhered to by employees and third parties alike by monitoring the level of compliance. The Plan must also be regularly updated to reflect the recommended information and guidance by the State Department of Health or Centers for Disease Control and Prevention.
To ensure that the risk of exposure is adequately taken care of, the employer will provide the appropriate exposure controls depending on the level of exposure risk of employees on the worksite. And these control measures include:
- Health Screening: This is done to limit the exposure of employees to those already with the symptoms of an airborne disease, and it must be done following the guidance issued by the State Department of Health or the Centers for Disease Control and Prevention, as applicable. The protocols provided by these bodies regarding testing, isolation, and quarantine must also be followed.
- ii. Face Coverings: Employers are mandated to provide face coverings at the worksite, at no cost to the employees, and also ensure that they are worn especially in situations where physical distancing is unachievable.
- Physical Distancing: Employees will be expected to keep at least six feet apart from each other and third parties in the event of a disease outbreak.
- Hand Hygiene Facilities: Employers are expected to provide handwashing facilities or when this is not practicable, hand sanitizers which must contain at least 60% alcohol around the worksite.
- Cleaning and Disinfection: The facilities and method of disinfection proscribed by the State Department of Health or the Centers for Disease Control and Prevention to clean and disinfect relevant surfaces around the worksite must be provided. These surfaces include those believed to be contaminated and those frequently used like doorknobs, elevator buttons, handrails, etc. Shared tools and equipment, as well as common areas like dining rooms and bathrooms, are also recommended to be disinfected.
Likewise, private equipment owned by employees is expected to be stored, used, and maintained in a sanitary way.
This section was incorporated into the Plan to ensure that no employer of labor or their agent takes hostile action against any employee who in recognition of their rights and good faith:
- Reports acts that are contrary to the provisions of an adopted Exposure Prevention Plan to their employer or any government entity.
- Reports or seeks assistance regarding a disease exposure concern to their employer, any government entity, or public officer
- Refuses to work when they reasonably believe that the work will increase their risk of exposure to an airborne infectious disease, or that of their fellow employees or the public. But this may only stand provided that the employer had previously been notified of this heightened risk of exposure and the employer failed to better the working condition.
In light of the above, an employee may seek redress by instituting a civil action against an employer for violating the provision of the Prevention Plan in such a manner that the result of death or grievous bodily harm being done to the employee was substantially probable. But this action may only hold if the employer exercised bad faith and failed to correct the violation even after being notified of it.
As part of the hero act employers must permit safety committee designees to attend a training course up-to 4 hours long, without suffering a loss of pay. This training course should cover the function of worker safety committees, rights established under the hero act, and an introduction to occupational safety and health.
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To this end, it is in hope that no future disease will have such a paralyzing effect on the economy as the COVID-19 pandemic did because preparations have been put in place.
And since a reasonable percentage of citizens are employees or customers in the labor sector, there is no denying the impact that this law will have on the nation as a whole.