HCA confirming impact of separate OSHA emergency rule; join us for July 13 webinar sorting it out
Importantly, DOL clarifies that while employers must adopt plans … the plans are currently “not required to be in effect.”
The state Department of Labor (DOL) has now posted model Infectious Disease Exposure Prevention Plan templates and an Airborne Infectious Disease Exposure Prevention Standard for implementation of the NY HERO Act, starting the clock on employer compliance deadlines.
As extensively reported, the New York Health and Essential Rights Act (NY HERO Act) was signed into law on May 5, 2021 creating major airborne infectious disease control workplace requirements for most employers (those with at least 10 employees) in New York State.
The law was amended in June, requiring employers to adopt the plans within 30 days after the date that the model standards are published, as they were this week. DOL today confirmed to HCA that August 5, 2021 is, therefore, the deadline for New York employers to adopt an airborne infectious disease exposure plan.
Employers can choose to adopt the applicable policy template/plan provided by DOL (see the templates available here) or establish an alternative plan that meets or exceeds the standard’s minimum requirements. Note that DOL has not yet posted a template for the health care sector.
Employers must also provide the plan in writing to all employees in English and the primary language of the worker(s) within 30 days of adopting the plan, within 15 days of reopening due to airborne infectious disease-related closure, and to all new employees upon hire.
The newly posted standard outlines: the elements of a written exposure prevention plan and requirements for verbal review of the plan with employees; monitoring and enforcement compliance; and specific workplace exposure controls that must be included in the exposure prevention plan, such as health screenings, face coverings, physical distancing, hand hygiene facilities, cleaning and disinfection, and personal protective equipment. It also outlines anti-retaliation provisions.
Intersection with OSHA Emergency Temporary Standard?
Complicating matters is the fact that the federal Occupational Safety and Health Administration (OSHA) has separately posted an Emergency Temporary Standard (ETS) rule requiring employers to develop and implement a plan for identifying and controlling COVID-19 hazards in the workplace. HCA has been seeking clarification on how the NY HERO Act and OSHA rule interrelate.
According to one analysis, DOL’s “Airborne Infectious Disease Exposure Prevention Standard” states that the standards do not apply to: “Any employee within the coverage of a temporary or permanent standard adopted by the Occupational Safety and Health Administration setting forth applicable standards regarding COVID-19 and/or airborne infectious agents and diseases.”
In a memo today, HCA’s government-affairs firm, Hinman Straub, interprets this to mean that providers “that are subject to the Emergency Temporary Standards (“ETS”) adopted by OSHA are excused from the NYS HERO Act obligations.”
“This is important guidance from the NYS DOL that clarifies any conflicting obligations under these laws,” the Hinman Straub memo adds. “More importantly, under the ETS, a health care provider, as defined by OSHA, is still obligated to ensure that there is a plan and it is in effect.”
HCA is confirming this interpretation directly with DOL.
July 13 Webinar to Help Sort Things Out
We remind members that we are holding an upcoming webinar on July 13 from 2 to 3 p.m. to discuss the OSHA ETS; this webinar will specifically cover how the OSHA rule intersects with state or local mandates and guidance, like the NY HERO Act. Register today.
Many Other Questions
This week’s posting of the NY HERO Act standards and model exposure prevention plans leaves a lot of still-unanswered questions for providers and other employers in New York State.
DOL was tasked with developing industry-specific templates, which it did for a variety of sectors, but none are posted for health care.
The newly posted standard includes general provisions for when the requirements go into effect and when plans must be activated. Each employer shall establish a written exposure prevention plan designed to eliminate or minimize employee exposure to airborne infectious agents in “the event of an outbreak of an airborne infectious disease” that has been designated.
In response to an inquiry today, a DOL representative indicated that “currently, while employers must adopt plans as required by the law, as of the date of this writing no designation has been made and plans are not required to be in effect.”
Workplace Safety Committee
In addition to the new standards and requirements for Infectious Disease Exposure Prevention Plans outlined above, the NY HERO Act also requires employers to establish and maintain a joint labor-management workplace safety committee with a range of duties and authorities.
The requirement for a joint labor-management workplace safety committee takes effect 180 days after the law was signed on May 5, meaning it is required by November 1.
HCA will report back to the membership as we gain answers about general applicability questions as well as any specifics for home and community-based services and employers.