New York HERO Act “Standard” Formally Adopted as Emergency Rule

As we have previously explained, pursuant to Section 1 of the NY HERO Act, employers were required to prepare an airborne infectious disease exposure plan, and implement such plans when the New York State Commissioner of Health has made a designation that a highly contagious communicable disease presents a serious risk of harm to public health. Currently, such a designation is in effect until February 15, 2022. The New York State Department of Labor (“NYSDOL”) prepared model plans based on their published Airborne Infectious Disease Exposure Prevention Standard (“Standard”). On August 25, 2021, the NYSDOL published a set of emergency regulations, identical to the Standard, in the New York State Register. Although they had not been formally adopted, most businesses have been following the Standard.

These emergency regulations have now been officially adopted as an emergency rule, per the notice published in the January 19, 2022 New York State Register, with a backdated effective date of January 1, 2022. The NYSDOL intends to adopt the emergency rule as a permanent rule, as the emergency rule is set to expire on March 1, 2022. Notably, the New York State Register notice provides that the regulations do “not impose any requirements in addition to those imposed by the NY HERO Act.”

The NYSDOL received several comments following publication of the Notice of Proposed Rulemaking and Emergency Adoption in the August 25, 2021 edition of the New York State Register, and a hearing was held on November 18, 2021 to receive testimony from the public and various stakeholders. The NYSDOL stated that they have assessed these comments and testimony for any changes and found that no changes were necessary or appropriate, although it will continue to assess these comments for the permanent rule.

As a reminder, Section 2 of the HERO Act, which relates to workplace safety committees, is currently undergoing the rulemaking process as well. The NYSDOL recently issued a proposed rule in the December 22, 2021 edition of the New York State Register. A hearing on this proposed rule is scheduled for February 9, 2022 at 11:00 a.m., and public comments will be accepted for five days thereafter (or longer, if a second hearing is scheduled).