NY Department of Labor published the model workplace airborne infectious exposure prevention standards, a general airborne infectious disease exposure prevention standard, and several template prevention plans for the following areas/industries: Agriculture, Construction, Delivery Services, Domestic Workers, Emergency Response, Food Services, Manufacturing and Industries, Personal Services, Private Education, Private Transportation, and Retail.

Private sector employers are required to adopt one of the NYDOL’s model plans, or to create their own plan that aligns with the statutory requirements, by August 5, 2021. There are also mandatory training and distribution requirements.

 The NYDOL guidance and model plans can be found here:  https://dol.ny.gov/ny-hero-act

The HERO Act amends the New York Labor Law (NYLL) by adding two new sections:

Section 1, NYLL Section 218-b, “Prevention of Occupational Exposure to an Airborne Infectious Disease”: Essentially codifies the type of health and safety requirements found in the New York Forward Guidance. (Since summer 2020, New York private employers who wished to operate in person must comply with extensive health and safety directives in various executive orders, state and local health department orders, and New York Forward Guidance for their specific industry issued in response to the COVID-19 pandemic.)

Section 2, NYLL Section 27-d, “Workplace Safety Committee”: Gives employees the opportunity to create a joint employer and employee committee to address workplace health and safety issues.

Employers may establish the required infectious disease exposure prevention plan either by adopting a model plan developed by the New York Department of Labor that is “relevant to their industry” or by establishing an alternative plan that “equals or exceeds the minimum standards” promulgated by the Department of Labor. Consistent with this requirement, the Act also requires the Department of Labor, in conjunction with the Department of Health, to establish infectious disease exposure prevention standards that are applicable to all “work sites” and differentiated by industry. The concept of a “work site” is defined broadly under the Act, as including “any physical space, including a vehicle, that has been designated as the location where work is performed,” including employer-provided housing and transportation. Beyond being industry and work site specific, the model plans must also specify and distinguish between “different levels of airborne infectious disease exposure,” as well as whether a state of emergency has or has not been declared due to any such infectious disease.

The Act specifically requires the model plans to include requirements on procedures and methods relating to a number of items, including, but not limited to:

  • employee health screenings;
  • face coverings;
  • required personal protective equipment, which must be “provided, used, and maintained in a sanitary and reliable condition at the expense of the employer”;
  • regular cleaning and disinfecting of shared equipment and “frequently touched surfaces” such as workstations, as well as “all surfaces and washable items in other high-risk areas” including restrooms and dining areas;
  • effective social distancing for employees and consumers or customers based upon the risk of illness; and
  • compliance with applicable engineering controls such as proper air flow or other special design requirements.

The Act also explicitly requires that the plan include anti-retaliation requirements. Notably, one of the anti-retaliation provisions in the Act prohibits an employer from taking adverse action against an employee who refuses to work where the employee “reasonably believes, in good faith” that their work exposes them to an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with applicable law and regulations, including the model plans promulgated by the Department of Labor. The Act also permits the Department of Labor to assess civil penalties of not less than $50 per day for failing to adopt a plan, or between $1,000 and $10,000 for failing to comply with a plan, which are multiplied substantially if the employer had a similar violation within the preceding six years.

Beyond permitting the Department of Labor to take administrative action against employers, the Act also permits employees to bring civil actions seeking injunctive relief where an employer is alleged to have violated the plan in a manner that creates a substantial probability of death or serious physical injury. The court adjudicating such an action has the power to not only enjoin the violation, but may also award the employee costs and reasonable attorneys’ fees and liquidated damages up to $20,000.

Workplace safety committees established under the Act are composed of employer and employee designees, but at least two-thirds of the members of any such committee must be non-supervisory employees, and “selected by, and from among” the employer’s non-supervisory employees. Employers are explicitly prohibited from interfering with the selection of employees to serve on the committee and from retaliating against employees for any action relating to their participation in the committee.

Once established, the committees are empowered to perform a number of tasks including: raising health and safety concerns to which the employer “must respond”; reviewing policies that were adopted in response to health and safety laws, rules, and executive orders; participating in site visits by government agencies responsible for enforcing safety and health standards; and regularly scheduling meetings during working hours. Employers must also permit committee members to attend a training, without loss of pay, on the function of the committee, the rights established under the law, and an introduction to occupational safety and health. The section of the Act allowing for the creation of these committees will take effect on November 1, 2021. (Nixon Peabody)

I-9 Acceptable Documents Receipts

Sometimes, employees will present a “receipt” in place of a List A, B, or C document. An acceptable receipt is valid for a short period of time so you can complete Section 2 or Section 3 (reverification) of Form I-9, Employment Eligibility Verification. You cannot accept receipts if employment will last less than 3 days.

You can only accept 3 types of receipts:

  • A receipt showing that your employee has applied to replace a List A, B, or C document that was lost, stolen, or damaged.

This receipt is valid for 90 days from the date of hire (meaning, first day of work for pay) or in the case of reverification, 90 days from the date employment authorization expired. Within 90 days, the employee should show you the replacement document for which the receipt was given. However, this is not always possible due to document delays, changes in status, or other factors. If the employee does not present the original document for which the previously provided receipt was issued but presents, within the 90-day period, other facially valid and reasonably related documentation to demonstrate his or her identity and/or employment authorization, as applicable, you may accept such documentation. In such cases, you should complete a new Section 2 and attach it to the original Form I-9. In addition, you should provide a note of explanation either in the Additional Information box included on page 2 of the Form I-9 or as a separate attachment. An employee must provide one document from List A or one document each from both List B and List C. If the receipt is for a List A document but the employee cannot present the actual replacement List A document for which the receipt was issued by the end of the 90-day receipt period, then the employee may choose to present a different document from List A, or one document each from List B and List C to satisfy the Form I-9 requirements. If the receipt is for a List B document but the employee cannot present the actual document by the end of the 90-day receipt period, then the employee may choose to present a document from List A instead, or a different List B document to satisfy the Form I-9 requirements. (Similarly, if the receipt is for a List C document, and the employee does not provide the actual document, the employee can present a List A document or another List C document instead.)

When your  employee provides an acceptable receipt for initial verification, you should:

  • Record the document title in Section 2 under List A, B or C, as applicable.
  • Enter the word “receipt,” the document title and number and the last day that the receipt is valid.

After the receipt expires, you should:

  • Cross out the word “receipt” and any accompanying document number;
  • Record the document information from the document(s) presented; and
  • Initial and date the change.

If the employee presented different but acceptable documentation as described above, you should complete a new Section 2 and attach it to the original Form I-9. In addition, you should provide a note of explanation either in the Additional Information box included on page 2 of the Form I-9 or as a separate attachment.

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