On September 6, 2021, Governor Kathy Hochul announced the designation of COVID-19 as an airborne infectious disease under the New York HERO Act. This designation requires all employers to implement workplace safety plans.
The FAQs being provided by NYSAR are based upon information provided by the New York State Department of Labor and opinion of outside counsel for complying with the HERO Act. NYSAR’s role is to provide information in the best interest of all of our members in every part of New York, and where specific guidance is not provided, we offer the narrowest possible interpretation so as not to expose members to potential liability, as well as preventing the spread of COVID-19.
For a .pdf version of the new NYSAR COVID-19 Disclosure form, click here.
For a word version of the new NYSAR COVID-19 Disclosure form, click here.
For a word version of the new NYSAR Health Screening form click here.
For a .pdf version of the new NYSAR Health Screening form click here.
What is the HERO Act?
The HERO Act becomes effective when the New York State Department of Health (“NYSDOH”) designates an airborne infectious disease as “a highly contagious communicable disease that presents a serious risk of harm to the public health” This was done on September 6, 2021.
The law mandates extensive new workplace health and safety protections in response to the COVID-19 pandemic. The purpose of the NY HERO Act is to protect employees against exposure and disease during an airborne infectious disease outbreak.
Under this new law, the New York State Department of Labor (NYS DOL), in cooperation with the NYS Department of Health, has developed a new standard, a model plan or general industry template, and 11 industry-specific
model plans 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.
This plan must go 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 standard is subject to any additional or greater requirements arising from a declaration of a state of emergency due to an airborne infectious disease, as well as any applicable federal standards.
What businesses are covered by the NY HERO Act?
The law covers all non-governmental industries across New York and work sites where real estate activities take place. The NY HERO Act does not cover telework or any work site that the employer does not have the ability to control.
What is a “worksite”?
The definition of a “worksite” in the NY HERO Act is “any physical space, including a vehicle, that has been designated as the location where work is performed over which an employer has the ability to exercise control.”
A broker’s office or association office would qualify as a “worksite” under the law.
Individuals participating in sales activities, such as meeting with clients or showing a house, could be viewed as being a worksite. Licensees should continue socially distancing as much as possible, wear face coverings, disinfect highly touched surfaces and monitor individuals attending a showing/open house for contact tracing.
Who is covered under the HERO Act?
This plan applies to all “employees” as defined by the New York State HERO Act, which means any person providing labor or services for remuneration for a private entity or business within the state including independent contractors.
The term also includes individuals working for digital applications or platforms, staffing agencies, contractors or subcontractors on behalf of the employer at any individual work site, as well as any individual delivering goods or transporting people at, to or from the work site on behalf of the employer, regardless of whether delivery or transport is conducted by an individual or entity that would otherwise be deemed an employer under this chapter.
What does the HERO Act require an employer to do?
According to the “NY HERO ACT Model Airborne Infectious Disease
Exposure Prevention Plan” provided by the NYSDOL:
During an airborne infectious disease outbreak, the following minimum controls will be used in all areas of the worksite:
- General Awareness: Individuals may not be aware that they have the infectious disease and can spread it to others. Employees should remember to:
- Maintain physical distancing;
- Exercise coughing/sneezing etiquette;
- Wear face coverings, gloves, and personal protective equipment (PPE), as appropriate;
- Individuals limit what they touch;
- Stop social etiquette behaviors such as hugging and hand shaking, and
- Wash hands properly and often.
- “Stay at Home Policy”: If an employee develops symptoms of the infectious disease, the employee should not be in the workplace. The employee should inform the designated contact and follow New York State Department of Health (NYSDOH)and Centers for Disease Control and Prevention (CDC) guidance regarding obtaining medical care and isolating.
- Health Screening: Employees will be screened for symptoms of the infectious disease at the beginning of their shift. Employees are to self-monitor throughout their shift and report any new or emerging signs or symptoms of the infectious disease to the designated contact. An employee showing signs or symptoms of the infectious disease should be removed from the workplace and should contact a healthcare professional for instructions.
The health screening elements will follow guidance from NYSDOH and CDC guidance, if available.
- Face Coverings: To protect your coworkers, employees will wear face coverings throughout the workday to the greatest extent possible. Face coverings and physical distancing should be used together whenever possible. The face covering must cover the nose and mouth, and fit snugly, but comfortably, against the face. The face covering itself must not create a hazard, e.g. have features could get caught in machinery or cause severe fogging of eyewear. The face coverings must be kept clean and sanitary and changed when soiled, contaminated, or damaged.
- Physical Distancing: Physical distancing will be followed as much as feasible. Avoid unnecessary gatherings and maintain a distance of at least six feet (or as recommended by the NYSDOH/CDC for the infectious agent) from each other. Use a face covering when physical distance cannot be maintained.
In situations where prolonged close contact with other individuals is likely, use the following control methods:
- restricting or limiting customer or visitor entry;
- limiting occupancy;
- allowing only one person at a time inside small enclosed spaces with poor ventilation;
- reconfiguring workspaces;
- physical barriers;
- floor markings;
- remote meetings;
- preventing gatherings;
- restricting travel;
- creating new work shifts and/or staggering work hours;
- adjusting break times and lunch periods;
- delivering services remotely
- Hand Hygiene: To prevent the spread of infection, employees should wash hands with soap and water for at least 20 seconds or use a hand sanitizer with at least 60% alcohol to clean hands BEFORE and AFTER:
- Touching your eyes, nose, or mouth;
- Touching your mask;
- Entering and leaving a public place; and
- Touching an item or surface that may be frequently touched by other people, such as door handles, tables, gas pumps, shopping carts, or electronic cashier registers/screens.
Because hand sanitizers are less effective on soiled hands, wash hands rather than using hand sanitizer when your hands are soiled.
- Cleaning and Disinfection: See Section V of this plan.
- “Respiratory Etiquette”: Because infectious diseases can be spread by droplets expelled from the mouth and nose, employees should exercise appropriate respiratory etiquette by covering nose and mouth when sneezing, coughing or yawning.
- Special Accommodations for Individuals with Added Risk Factors: Some employees, due to age, underlying health condition, or other factors, may be at increased risk of severe illness if infected. Please inform your supervisor or the HR department if you fall within this group and need an accommodation.
How do the requirements of the HERO Act differ from the Phase 2 requirements?
There is very little difference between the two as it applies to real estate offices and activities. Licensees will be required to take the same precautions when showing property and holding open houses. Licensees will need to wear a face mask, maintain social distancing and disinfect highly touched surfaces.
Where can I find information about the HERO Act?
For the HERO Act homepage from NYSDOL including links to the Airborne Infectious Disease Exposure Prevention Standard and Plan, click here.
For information and FAQ’s, click here.
Where can I find the industry specific exposure prevention plan for real estate?
Can a licensee perform an in-person showing or open house under the HERO Act?
Yes, but licensees should stagger showings in order to avoid the congregation of people outside and inside properties.
Licensees must wear masks, maintain social distancing and disinfect surfaces that were touched/highly touched surfaces.
Licensees should limit the number of individuals viewing a property at any one time. If multiple parties (from different households) arrive at the same time, licensees should encourage those in line to wait outside until their turn.
Licensees choosing to hold a traditional open house run the risk of multiple parties congregating outside the property waiting for their turn to view the property or attempting to enter the property while others are inside. Licensees should make every attempt to schedule showing times for an open house to avoid such issues.
Sellers, property owners and landlords may require members of the public entering the property to wear masks and take other safety measures.
Can I have in-person contact with a member of the public under the HERO Act?
Yes. The HERO Act permits in-person contact with a member of the public so long as required health and safety measures set forth in the prevention plan are followed.
Can I conduct a final walkthrough with a consumer under the HERO Act?
Yes, so long as all requirements contained in the prevention plan are strictly followed.
Can a licensee perform in-person showings in a region under the HERO Act?
Yes, so long as all requirements contained in the prevention plan are strictly followed.
Can I attend a closing under the HERO Act?
That would depend on the policy in place where the closing is taking place.
How do I use the NYSAR COVID-19 Disclosure form?
Below, please find instructions on how to use the Phase 2 form:
- The form is OPTIONAL
- You must have the permission of your broker before utilizing the form. Your broker may require you to either: a) use the NYSAR form; b) use a form the broker had prepared; or c) not use any form.
- The form has been provided to local boards, MLS’ and brokers previously and they may have released the form already with their name and/or logo.
- Licensees should present the form to the seller or buyer in the same manner an agency disclosure form is presented.
- The COVID-19 Disclosure form notifies the seller and buyer of the risks associated with permitting an individual to enter the property or by entering another individual’s property.
- By signing the form, the seller or buyer acknowledge that by permitting such access or by accessing the property they assume the risk of potential exposure to COVID-19. Licensees should explain to the seller and/or buyer that the form outlines the risks of COVID-19 exposure and by signing the form they are acknowledging and assuming such risks.
- Licensees should have the seller and/or buyer sign the form, print their name next to their signature and provide a signed copy to the seller or buyer and retain a signed copy for the brokers file.
- The form may be delivered in any manner currently permitted (paper, electronic transmission).
- A copy of the COVID-19 Disclosure form can be found HERE.
A Word copy of the COVID-19 Disclosure form with a co-branding area can be downloaded HERE.
What is the seller and/or buyer agreeing to when they sign the NYSAR COVID-19 Disclosure form?
In the event the seller and/or buyer is exposed to COVID-19 as a result of permitting or gaining access to the property, the form acts as a disclosure notice outlining the risks and having the party acknowledge that they are assuming such risk through their actions. If a licensee and/or broker were named in a lawsuit alleging exposure to COVID-19 by the seller and/or buyer (or a member of their household), the form could be used to show the seller and/or buyer were aware of the risks and assumed the risk of permitting access or gaining access to the property.
What if the seller and/or buyer refuse to sign the COVID-19 Disclosure form?
Licensees should follow the same procedure when a consumer refuses to sign an agency disclosure form. If the seller and/or buyer refuse to sign the form, the agent shall set forth a written declaration of the facts of the refusal and shall maintain a copy for the broker’s file.
If a buyer/tenant refuses to sign the COVID-19 Disclosure form or answer the screening questions, can the seller/landlord refuse to show the property to that party?
Yes, the seller/landlord can require compliance with both the COVID-19 Disclosure Form as a prerequisite before the showing. Consumers are not required to sign the COVID-19 Disclosure form or answer the screening questions and if all parties are comfortable with that, a showing may occur.
If a seller/buyer/landlord/tenant answers yes to any of the screening questions, what should I do?
If a seller/buyer/landlord/tenant answers yes to any question, it would be up to the parties as to whether they want to continue with the in-person showing assessing what risks they may be taking. For instance, a buyer is a health care worker and is exposed to COVID-19 as a result of their occupation. That would not disqualify them from the in-person showing if the seller is comfortable with the precautions being taken. If they are not comfortable, a licensee would not be required to conduct an in-person showing if any of the questions were answered “yes”. This would be a scenario where it would be prudent to utilize the COVID-19 Disclosure Form.