Client Alert 
September 7, 2021

Yesterday, Governor Kathy Hochul announced that the New York Commissioner of Health has designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health under the NY HERO Act. As such, all New York employers must now activate and adhere to their NY HERO Act Prevention Plans.

As per our previous client alert, the NY HERO Act mandates that all New York private sector employers adopt a health and safety plan to protect employees from exposure during an airborne infectious disease outbreak (a “Prevention Plan”). While employers were already required to adopt, distribute and post their Prevention Plans, employers were not required to activate those Prevention Plans until now.

Employers must now implement minimum preventative measures, including:

  • A “Stay at Home Policy” for employees experiencing symptoms of COVID-19
  • Health screenings
  • Face coverings for employees
  • Physical distancing
  • Hand hygiene
  • Cleaning and disinfection
  • Respiratory etiquette
  • Special accommodations for individuals with added risk factors

Upon activation of a Prevention Plan, all employees must be trained on the Prevention Plan, the standards of the NY HERO Act, and the infectious disease.

Employers should carefully review their Prevention Plans to ensure they remain in compliance with its preventative measures and update their Prevention Plans as necessary. Employers may also consider reviewing the State’s Airborne Infectious Disease Exposure Prevention Standard for more information regarding employers’ obligations.

When the NY HERO Act was originally passed, it was not anticipated that Prevention Plans would be activated for COVID-19. As such, there is little guidance available regarding specifics of implementation.  We are hopeful that the State will provide clarifying guidance, as well as training resources, in the near future.

The NY HERO Act does not supersede the Key to NYC program. Employers in New York City are encouraged to consult with counsel regarding the interplay of the NY HERO Act and the Key to NYC program.
*            *            *

If you have questions or would like additional information, please contact our Labor & Employment attorneys or the primary EGS attorney with whom you work.

This memorandum is published solely for the informational interest of friends and clients of Ellenoff Grossman & Schole LLP and should in no way be relied upon or construed as legal advice.