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Do I Really Have to Write Another Plan?

As LeadingAge NY reported last week, Governor Hochul announced the designation of COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health under New York State’s HERO Act. This designation requires all employers to implement workplace safety plans in the event of an airborne infectious disease, helping to prevent workplace infections. The law covers all non-governmental industries across New York and worksites, with the exception of any employee or employer within the coverage of a temporary or permanent Occupational Safety and Health Administration (OSHA) standard on COVID-19 or airborne infectious diseases generally. So, while it is clear that providers that must comply with the OSHA Emergency Temporary Standard (ETS) are exempt from having to develop an Exposure Prevention Plan required in the HERO Act, they are not exempt from the requirement that all employers with 10 or more employees permit workers to establish and administer a joint labor-management workplace safety committee by Nov. 1, 2021.

For members that have both health care and non-health care settings, this raises questions regarding the potential for one plan to satisfy both the OSHA ETS and the HERO Act. While the OSHA ETS and the HERO Act requirements have many commonalities, the OSHA standard exceeds the HERO Act Exposure Prevention Plan requirement to the degree that many aspects would not be applicable to non-health care settings such as housing. There are also specifics and nuances to the HERO Act not addressed in the OSHA ETS. Taken together, it seems unlikely that one plan for all settings on a campus will be easily implemented. Thus, you are likely to have to have an OSHA plan for your health care components and a HERO Act plan for your non-health care components. It should be noted that each requirement allows you to develop one plan for substantially similar settings. For example, if a health care provider had multiple services or locations, one OSHA ETS COVID-19 plan might suffice for each of the settings if substantially similar. The HERO Act also allows one plan for similar settings.

While it is unfortunate that some members will have to develop two (or more) different plans, the good news is that you have likely implemented the vast majority of the HERO Act’s airborne infectious disease plan requirement. The HERO Act plan requires health screening, face coverings, physical distancing, hand hygiene facilities, cleaning and disinfection protocols, and personal protective equipment (PPE) standards. Thus, it is likely that the HERO Act will be relatively easy to implement. It should also be noted that it requires you to share the plan with employees, post it, and conduct a verbal review (which could be virtual) of the plan.

Please note that both the OSHA ETS COVID-19 plan and the HERO Act Exposure Prevention Plan should already be implemented at this time. If for some reason you have yet to implement either plan, below are two helpful templates you can use.

More information on the HERO Act and its requirements is available here, and more information on the OSHA ETS is here.

Contact: Diane Darbyshire, ddarbyshire@leadingageny.org, 518-867-8828