New York Amends HERO Act Requiring Employers To Implement Infectious Disease Prevention Plan

September 10, 2021


On May 5, 2021, the New York Health and Essential Rights Act (“HERO Act”) was signed into law.  The HERO Act mandates that workplaces adopt measures to protect employees during airborne infectious disease outbreaks.  The Act requires employers to adopt an airborne infectious disease exposure prevention plan (the “Plan”).  All employers are required to adopt the Plan.  In addition, the Act specifies that all employers must implement the Plan once a disease is designated as a highly contagious disease.

At the time the Act took effect, no disease was designated.  However, on September 6, 2021, COVID-19 was designated as a highly contagious communicable disease.  Therefore, employers with worksites in New York State are required to implement the Plan.  Employers that have not yet adopted or implemented a Plan must take steps to do so immediately.       

Airborne Infectious Disease Prevention Plan

Employers are required to either adopt the Department of Labor’s Model Airborne Infectious Disease Exposure Prevention Plan (the “Model Plan”) or create an alternative plan that meets or exceeds the Model Plan’s standards. The GW Employment Team can assist reviewing existing plans or implementing an updated Plan.  The Department of Labor has issued several industry specific model plans for the agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing, personal services, private education, private transportation, and retail industries.

Once an employer adopts the Model Plan or their alternative plan, it must be posted in a conspicuous place in the workplace and distributed to employees.  The Plan must also be made available upon request to all employees, employee representatives, collective bargaining representatives, independent contractors, the Department of Health, and the Department of Labor.   Employers are also required to include the Plan in their employee handbook, if the employer maintains one.

Finally, the Act prohibits employers from retaliating against employees that exercise their rights under the HERO Act or a Plan, which includes reporting violations, reporting an airborne infectious disease exposure concern, or for refusing to work where an employee reasonably believes in good faith that such work exposes themselves, other workers, or the public to an unreasonable risk of exposure, provided that the employee, another employee, or representative has notified the employer, of the working conditions and the employer’s failure to cure or if the employer knew or should have known of the working conditions.

Looking Ahead: Establishing a Workplace Safety Committee

The Act also requires that, by November 1, 2021, private employers with 10 or more employees must allow employees to establish a joint employer-employee workplace safety committee.  The committees would be comprised of employer and employee designees and at least two-thirds of the members must be non-supervisory employees.  The Act directs the Department of Health to adopt rules and regulations related to the implementation of these committees in the workplace.

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