On April 20, 2021, the New York Legislature passed the New York Health and Essential Rights Act or “HERO Act” (“Act”). The Act was signed by the Governor on May 5 and would generally take effect 30 days after the signing (June 4). However, the Governor’s approval came with an amendment to the Act which would allow businesses to correct violations of the new standards to avoid litigation from their workers, in addition to giving the New York State Department of Labor (DOL) and employers more specific instructions in developing and implementing workplace safety standards and a clearer implementation timeline. Because the Governor’s amendment to the Act requires approval from the state legislature and the DOL may need additional time to develop the standards the effective date of some of the Act’s provisions may change.
The Act establishes minimum workplace health and safety standards and imposes significant obligations on private employers, regardless of size, to prevent exposure to airborne infectious diseases. Specific guidelines will be set by industry-specific standards to be created by the DOL and New York State Department of Health (DOH), like current New York Forward industry-specific guidelines.
Covered Employees and Employers
The Act will broadly apply to all workers, including employees, part-time workers, independent contractors, domestic workers, home care and personal care workers, day laborers, farmworkers, and other temporary and seasonal workers. In addition, the Act applies not only to primary worksites but also to any vehicles that are used as a location where work is performed and any employer-provided housing and transportation. Required safety standards will also apply to any private residence if it is the primary place of work for a covered employee.
The Act excludes public employers, including the state, political subdivisions of the state, public authorities, and any other governmental agency or instrumentality from the definition of “employer.”
The Act amends the New York Labor Law by adding Section 218-b which mandates covered employers adopt and publish a written “airborne infectious disease exposure prevention plan” as follows:
- Implement a health and safety plan that meets or exceeds these standards;
- Post that plan in the workplace in English and the employee’s primary language; and
- Distribute a copy of the plan to all employees.
The prevention plan must include and address a number of topics, including but not limited to: employee health screenings; face coverings; required personal protective equipment (PPE); hand hygiene; regular cleaning and disinfection of high-risk areas; social distancing (for both employees and customers); compliance with mandatory or precautionary orders of quarantine; compliance with applicable engineering controls (such as ventilation); designation of one or more supervisory employees to enforce compliance with the prevention plan and any other applicable guidance; compliance with applicable laws, rules, regulations, or guidance related to potential exposure to airborne infections disease at the worksite; and verbal review of the prevention plan standards, related employer policies, and rights under the law.
The DOL will provide model prevention plans in various languages. If an employee’s primary language is not one of such documents made available by the DOL, employers will be deemed to have complied with this requirement by providing an English-language notice. Accordingly, employers may adopt the model prevention plan, or in the alternative, develop and implement their own prevention plan that meets and/or exceeds the minimum standards.
Where an employer wishes to adopt an alternative airborne infectious disease exposure prevention plan, the law requires employers to develop such a plan pursuant to an agreement with the collective bargaining representative (if applicable), or with “meaningful participation of employees” for all aspects of the plan, even if there is no collective bargaining representative. Employers who adopt their own plan must tailor it to the specific hazards in their specific industry and their work sites.
Provisions of Section 218-b may be waived by collective bargaining agreement. However, for such wavier to be valid it must explicitly reference Section 218-b.
Additional Notice Requirements
In addition to posting the plan within the workplace, employers who have an employee handbook will be required to include the prevention plan in the handbook as well. Employers would also be required to make the prevention plan available upon request to all employees, independent contractors, employee representatives, collective bargaining representatives, and the Commissioner of Labor, or Commissioner of Public Health.
Employers who fail to adopt a plan would be subject to a penalty of at least $50 per day until a plan is implemented, and employers who fail to comply with an adopted plan could be subject to fines ranging from $1,000 to $10,000. In addition to civil fines, the HERO Act creates a private right of action for employees, who may bring a claim for injunctive relief against their employer for failing to comply with relevant health and safety standards. Courts may award up to $20,000 in liquidated damages and attorneys’ fees to a prevailing plaintiff under the Act, unless the employer “proves a good faith basis to believe that the established health and safety measures were in compliance with the applicable airborne infectious disease standard.”
Retaliation against employees who report a plan violation or refuse to work if they reasonably believe that the workplace exposes them to health and safety risks is prohibited and may give rise to a separate cause of action.
Joint Labor-Management Workplace Safety Committee
The Act also amends the New York Labor Law by adding Section 27-d which requires covered employers with at least 10 or more employees to permit employees to establish and administer a join labor-management workplace safety committee by November 1, 2021. At least two-thirds of the committee must consist of non-supervisory employees, and it must be co-chaired by both an employer representative and a non-supervisory employee.
The Act authorizes such committees to:
- Raise health and safety concerns, to which the employer must respond;
- Review any employer policy required by the Act or the New York workers’ compensation law and provide feedback;
- Review any workplace policy promulgated in response to any health or safety law; participate in any site visit by a government entity responsible for enforcing health and safety standards;
- Review any employer health and safety report; and
- Regularly schedule a meeting during work hours at least once per quarter.
Committee members must also be permitted to attend training associated with their role without loss of pay.
Retaliation against committee members is prohibited and punishable by a civil fine of up to $10,000. Committee members who believe that they have suffered retaliation may also assert claims in court and may recover liquidated damages and attorneys’ fees.
Next Steps for Employers
New York employers should be aware of the HERO Act’s implications and take necessary steps to prepare for compliance. Employers should begin planning to implement and distribute adopted health and safety plans and provide managers with both policy compliance and anti-retaliation training. Employers should also prepare to form a joint labor-management workplace safety committee and ensure the committee is included in decisions regarding workplace health and safety.
To date, the newly added sections of the Labor Law (218-d and 27-d) have not yet been published, and it is unknown when the DOL will publish the model prevention plans. But, once the DOL publishes these new standards, employers should review them to determine whether their current workplace health and safety plans are compliant. In the meantime, employers must continue to comply with the current state and local COVID-19 reopening guidelines.
HR Works will continue to monitor this legislation and provide updates as new information becomes available.