***UPDATE: On February 15, 2022, the New York State Commissioner of Health continued the designation of COVID-19 as a “highly contagious communicable disease” pursuant to the HERO Act until March 17, 2022. According to the designation, on  March 17, the Commissioner “will review the level of transmission of COVID-19 in New York State and determine whether to continue this designation.” A copy of the designation is available here.***

On October 31, 2021, the New York State Commissioner of Health continued the designation of COVID-19 as a “highly contagious communicable disease” pursuant to the HERO Act until December 15, 2021.  This means that New York employers must continue to keep in effect the airborne infectious disease prevention plans that they have adopted related to COVID-19.

According to the latest designation, on December 15, the Commissioner “will review the level of transmission of COVID-19 in New York State and determine whether to continue this designation.” A copy of the designation is available here.

It is worth noting that the portions of the HERO Act requiring the adoption and implementation of an airborne infectious disease prevention plan do not apply to “employees covered by any other OSHA standard specifically related to airborne infectious diseases or COVID-19 in particular.”  Presently there is no such general standard in effect for employees, though an emergency temporary standard (“ETS”) related to COVID-19 is currently in place for health care workers, and thus such workers are not presently covered by the prevention plan requirements of the HERO Act.

However, it is anticipated that OSHA will very soon be releasing an ETS regarding vaccination of employees working for employers with 100 or more employees.  It remains to be seen whether or to what extent the OSHA vaccination ETS may impact the applicability of the HERO Act to employers covered by the ETS.  The HERO Act FAQs note that the New York Department of Labor “will update information if and when OSHA does create a standard that applies to any additional employees.”  We will continue to monitor developments in this area and report on any updates.

Photo of Evandro Gigante Evandro Gigante

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of…

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation and breach of contract. Evandro also counsels employers through reductions-in-force and advises clients on restrictive covenant issues, such as confidentiality, non-compete and non-solicit agreements.

With a focus on discrimination and harassment matters, Evandro has extensive experience representing clients before federal and state courts. He has tried cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions.

Photo of Laura Fant Laura Fant

As a special employment law counsel in the Labor & Employment Law Department and co-chair of the Disability, Accommodations & Leave Management Practice Group, Laura Fant frequently counsels on employee leave and accommodation matters involving the Americans with Disabilities Act, the Family and…

As a special employment law counsel in the Labor & Employment Law Department and co-chair of the Disability, Accommodations & Leave Management Practice Group, Laura Fant frequently counsels on employee leave and accommodation matters involving the Americans with Disabilities Act, the Family and Medical Leave Act and related state and local laws. She also provides general employment counseling and has experience reviewing and updating employee handbooks and company policies, as well as providing training on topics such as discrimination and harassment in the workplace, social media, and the accommodation of physical and mental disabilities. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog.

Before joining the Firm, Laura was assistant general counsel to the City of New York’s Office of Labor Relations. Prior to that, she was law clerk to Judge Jose L. Fuentes of the New Jersey Superior Court, Appellate Division, and a judicial intern to Judge Laura Taylor Swain of the U.S. District Court for the Southern District of New York.