• Section 840.1(a), “General Provisions,” sets forth the general provisions including applicability of the regulation and definitions.

• Section 840.1(b), “Exposure Prevention Plan,” sets forth the requirements for an employer adopted Exposure Prevention Plan to eliminate or minimize employee exposure to airborne infectious disease agents designated by the Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health.

• Section 840.1(c), “Exposure Controls,” sets forth requirements for employers to select and obtain exposure controls appropriate for the exposure risks and requires that such controls be included in the employer’s Exposure Prevention Plan.

• Section 840.1(d), “Anti-Retaliation,” prohibits employers from retaliating against employees for exercising their rights under this regulation or an employer’s Exposure Prevention Plan.

Statutory Authority: State Administrative Procedure Act (SAPA) § 202(6); Labor Law §§ 218-b, and 21(11).

Legislative Objectives: On May 5, 2021, Governor Andrew Cuomo signed the New York Health and Essential Rights Act (NY HERO Act) into law. The purpose of Section 1 of the NY HERO Act is to protect employees against exposure and disease during a future airborne infectious disease outbreak. The law mandates extensive new workplace health and safety protections in response to the COVID-19 pandemic, including the requirement that all private industry employers adopt an airborne infectious disease prevention plan, and to put such plans into effect when an airborne infectious disease is designated by the New York State Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health. The Act further directs the Department of Labor to develop, with the consultation of the Department of Health, a model standard for the prevention of airborne infectious diseases.

Needs and Benefits: This regulation is required by the NY HERO Act, and is both necessary and required for the implementation of that law. This regulation sets forth standards governing airborne infectious disease prevention plans, which employers are required to adopt. In addition to this regulation, in consultation with the NYS Department of Health, the Department developed a new Model Airborne Infectious Disease Exposure Prevention Plan (template), and various industry-specific model plans (templates) for the prevention of airborne infectious disease. Employers can choose to adopt the applicable policy template/plan provided by NYS DOL or establish an alternative plan that meets or exceeds the standard’s minimum requirements. Templates which meet the requirements of the standard/regulation were posted on the Department’s website contemporaneously to the publication of the standard on July 6, 2021. While employers that choose to develop and adopt their own plan must closely review the Hero Act and the standard/regulation to ensure compliance with its requirements, employers may comply with these requirements through the adoption of a plan using a template developed by the Department of Labor.

Costs: While it is anticipated that employers may incur costs as a result of the requirements of the NY HERO Act, the present rulemaking does not impose any additional or further costs on the regulated community than those imposed by the HERO Act itself. The Department, in taking action in the manner described above, is affording employers the ability to comply through the adoption of a template published by the Department thereby minimizing or eliminating such costs. The Department estimates that there will be no significant costs to the regulated community as a direct result of this regulation, to the Department of Labor, or to state and local governments to implement this regulation.

Local Government Mandates: This regulation does not apply to governmental entities.

Paperwork: This regulation is necessary to implement the NY HERO Act and does not impose any specific recordkeeping, reporting or other paperwork requirements beyond those inherent in the statute.

Duplication: This rulemaking does not duplicate, overlap, or conflict with any other state or federal requirements, and specifically exempts employment covered by 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.

Alternatives: There were no significant alternatives considered.

Federal Standards: This rulemaking does not duplicate, overlap, or conflict with any other state or federal requirements, and specifically exempts employment covered by 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.

Compliance Schedule: This emergency rulemaking shall become effective upon the date specified within the filing with the Department of State, and the rulemaking will be effective upon the publication of a notice of adoption in the State Register.

Effect of Rule: The purpose and intent of this regulation is to implement Section 1 of the NY Hero Act through the adoption an Airborne Infectious Disease Prevention Standard.

Compliance Requirements: This regulation does not impose any requirements in addition to those imposed by the NY HERO Act, which requires employers to adopt an airborne infectious disease prevention plan. The regulation does not apply to governmental entities.

Professional Services: No professional services are required to effectuate the purposes of this regulation.

Compliance Costs: While it is anticipated that employers may incur costs as a result of the requirements of the NY HERO Act, the present rulemaking does not impose any additional or further costs on the regulated community than those imposed by the HERO Act itself. The Department, in taking action in the manner described above, is affording employers the ability to comply through the adoption of a template published by the Department thereby minimizing or eliminating such costs. The Department estimates that there will be no significant costs to the regulated community as a direct result of this regulation, to the Department of Labor, or to state and local governments to implement this regulation.

Economic and Technological Feasibility: The regulation does not require any use of technology to comply.

Minimizing Adverse Impact: The Department does not anticipate that this regulation will adversely impact small businesses or local governments. The Department, in taking action in the manner described above, is affording employers the ability to comply through the adoption of a template published by the Department thereby minimizing or eliminating such costs. The Department estimates that there will be no significant costs to the regulated community as a direct result of this regulation, to the Department of Labor, or to state and local governments to implement this regulation.

Small Business and Local Government Participation: The Department has met with various stakeholders, including those representing small businesses, and has sought feedback to the regulation from stakeholders both on its website and through this rulemaking’s comment period.

Initial review of the rule pursuant to SAPA § 207: Initial review of this regulation shall occur no later than the third calendar year in which it is adopted.

Types and estimated numbers of rural areas: The Department anticipates that this regulation will have a positive or neutral impact upon all areas of the state; there is no adverse impact anticipated upon any rural area of the state resulting from adoption of this regulation.

Reporting, recordkeeping and other compliance requirements: The Department, in taking action in the manner described above, is affording employers the ability to comply through the adoption of a template published by the Department thereby minimizing or eliminating such costs. The Department estimates that there will be no significant costs to the regulated community as a direct result of this regulation, to the Department of Labor, or to state and local governments to implement this regulation.

Professional services: No professional services will be required to comply with this regulation.

Costs: While it is anticipated that employers may incur costs as a result of the requirements of the NY HERO Act, the present rulemaking does not impose any additional or further costs on the regulated community than those imposed by the HERO Act itself. The Department, in taking action in the manner described above, is affording employers the ability to comply through the adoption of a template published by the Department thereby minimizing or eliminating such costs. The Department estimates that there will be no significant costs to the regulated community as a direct result of this regulation, to the Department of Labor, or to state and local governments to implement this regulation.

Minimizing adverse impact: The Department does not anticipate that this regulation will adversely impact small businesses or local governments. The Department, in taking action in the manner described above, is affording employers the ability to comply through the adoption of a template published by the Department thereby minimizing or eliminating such costs. The Department estimates that there will be no significant costs to the regulated community as a direct result of this regulation, to the Department of Labor, or to state and local governments to implement this regulation.

Rural area participation: The Department does not anticipate that the regulation will have an adverse economic impact upon rural areas nor will it impose new reporting, recordkeeping, or other compliance requirements.

Nature of Impact: The Department of Labor (hereinafter “Department”) projects there will be no adverse impact on jobs or employment opportunities in the State of New York as a result of this regulation.

Categories and numbers affected: The Department does not anticipate that this regulation will have an adverse impact on jobs or employment opportunities in any category of employment.

Regions of adverse impact: The Department does not anticipate that this regulation will have an adverse impact upon jobs or employment opportunities statewide or in any particular region of the state.

Minimizing adverse impact: Since the Department does not anticipate any adverse impact upon jobs or employment opportunities resulting from this regulation, no measures to minimize any unnecessary adverse impact on existing jobs or to promote the development of new employment opportunities are required.

Self-employment opportunities: The Department does not foresee a measurable impact upon opportunities for self-employment resulting from adoption of this regulation.

Initial review of the rule pursuant to SAPA § 207: Initial review of this regulation shall occur no later than the third calendar year in which it is adopted.

The agency received no public comment.