On May 5, 2021, Governor Cuomo signed the New York Health and Essential Rights Act (the "HERO Act" or "Act"), which amends the New York Labor Law by adding two new sections imposing significant health and safety obligations on employers in response to the COVID-19 pandemic. Section 1 of the HERO Act adds a new Section 218-b to the Labor Law requiring all private employers to adopt an airborne infectious disease exposure prevention plan and provide the plan to all employees, and prohibiting discrimination and retaliation against employees who exercise their rights under the Act. Section 2 of the HERO Act adds a new Section 27-d to the Labor Law requiring private employers of ten or more employees to allow employees to establish and administer a joint labor-management workplace safety committee.
Section 1 of the HERO Act takes effect on June 4, 2021, and Section 2 takes effect on November 1, 2021. However, a bill was recently introduced in the New York State Assembly (A.7747) to modify some of the terms of the HERO Act. One of the proposed amendments in Assembly Bill A.7747 would extend the effective date of Section 1 from 30 days to 60 days after the Act became law.
Section 1 – Airborne Infectious Disease Exposure Prevention Plans
Coverage
Section 1 of the HERO Act applies to all employers in New York State, except state or governmental agency employers, and covers any person providing services to such an employer, regardless of immigration status, including: 1) part-time workers; 2) independent contractors; 3) domestic workers; 4) temporary and seasonal workers; 5) individuals working for staffing agencies; and 6) individuals delivering goods or transporting people at, to or from the work site.
Adoption of the Model Standard or Individual Safety Plan
Section 1 of the Act requires the commissioner of the New York Department of Labor, in consultation with the Department of Health, to create and publish a "model airborne infectious disease exposure prevention standard for all work sites, differentiated by industry, to establish minimum requirements for preventing exposure to airborne infectious diseases in the workplace in order to protect the public and the workforce." The model standard must develop protocols addressing several topics, including but not limited to: 1) employee health screenings; 2) face coverings; 3) personal protective equipment required by industry and at the employer's expense; 4) accessible hand hygiene stations, including insuring that employers provide adequate break time for handwashing; 5) regular cleaning and disinfecting of shared equipment and frequently touched surfaces (i.e., workstations, telephones and doorknobs); 6) social distancing protocols for employees and third parties; 7) compliance with mandatory or precautionary orders of isolation or quarantine issued to employees; 8) compliance with applicable engineering controls such as proper air flow and exhaust ventilation; 9) designation of one or more supervisory employees to enforce compliance with the airborne infectious disease exposure prevention plan and any other federal, state, or local guidance related to avoidance of spreading an airborne infectious disease; 10) compliance with notification requirements to employees and relevant state and local agencies; 11) verbal review of infectious disease standards, employer policies and employee rights; and 12) anti-retaliation provisions.
Employers must either adopt and comply with the labor commissioner's model plan relevant to their industry or develop their own plan that meets or exceeds the minimum standards provided by the model plan and the Act. If an employer adopts its own airborne infectious disease exposure prevention plan, the employer must develop the plan in consultation with the collective bargaining representative in a unionized workforce or with "meaningful" employee participation in a non-unionized workforce. An employer-developed plan must also be "tailored and specific to hazards in the specific industry and work sites" of the employer. The Act does not currently include a deadline for employers to adopt a plan once the labor commissioner publishes the model plan. One of the proposed amendments in Assembly Bill A.7747 would impose a 30 day deadline for employers to adopt a plan after the commissioner publishes the model standard relevant to their industry.
Notice Requirements
The Act requires the labor commissioner to publish the model plan in both English and Spanish, and other languages at the commissioner's discretion based on the size of the population speaking each language and the prevalence of certain languages in particular industries. Employers must provide their airborne infectious disease exposure prevention plan to all employees in writing in English and in an employee's identified primary language (to the extent the model airborne infectious disease exposure prevention plan is available in the employee's identified primary language) upon the effective date of the HERO Act, upon hiring, and upon reopening after a period of closure due to airborne infectious disease.
Employers also must post their airborne infectious disease exposure prevention plan in a visible and prominent location within their worksites and include the plan in any employee handbook. The Act also requires employers to make their airborne infectious disease exposure prevention plan available, upon request, to all employees and independent contractors, employee representatives, collective bargaining representatives, and the commissioners of labor and public health.
Anti-Retaliation
Section 1 of the Act prohibits employers from discriminating, retaliating or taking adverse action against any employee for: 1) exercising their rights under Section 1 of the Act or under the applicable airborne infectious disease exposure prevention plan; 2) reporting violations of Section 1 of the Act or the applicable airborne infectious disease exposure prevention plan to any state, local, or federal government entity, public officer or elected official; 3) reporting an airborne infectious disease exposure concern to, or seeking assistance or intervention with respect to airborne infectious disease exposure concerns from, their employer, state, local, or federal government, public officer or elected official; or 4) refusing to work when the employee reasonably believes, in good faith, that such work exposes the employee, other employees or the public to an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with law, including but not limited to the minimum standards provided by the model airborne infectious disease exposure prevention standard, with some exceptions.
Penalties
The commissioner of labor may assess a penalty of not less than $50 per day for employers who fail to adopt an airborne infectious disease exposure prevention plan, and no less than $1,000 and no more than $10,000 for failing to abide by an adopted plan. Section 1 of the Act also permits employees to seek injunctive relief and for the courts to award costs, including reasonable attorneys' fees, and liquidated damages up to $20,000.
Section 2 – Workplace Safety Committee
Coverage
Section 2 of the HERO Act applies to all private employers of at least ten employees. "Employees" are defined in Section 2 of the Act as all employees in the state of New York, except employees of the state, any political subdivision of the state, a public authority, or any other governmental agency.
Joint Labor-Management Workplace Safety Committee
Section 2 of the Act requires covered employers to permit employees to establish and administer a joint labor-management workplace safety committee. The committee shall be made up of employer and employee designees and must be comprised of at least two-thirds non-supervisory employees. The Act requires that employee members of the committee be chosen by, and from among, non-supervisory employees. Additionally, the committee must be co-chaired by a representative of the employer and non-supervisory employees.1 Section 2 of the Act also authorizes the creation of multiple committees representing geographically distinct worksites as necessary. Employers are prohibited from interfering with the selection of employees who serve on the committee.
The Act authorizes workplace safety committees to: 1) raise health and safety concerns, hazards, complaints and violations to the employer to which the employer must respond; 2) review and provide feedback on any workplace health and safety policy required by any provision of the HERO Act or the workers' compensation law; 3) review the adoption of any policy in the workplace in response to any health or safety law, ordinance, rule, regulation, executive order, or other related directive; 4) participate in any site visit by any governmental entity responsible for enforcing safety and health standards in a manner consistent with any provision of law; 5) review any report filed by the employer related to the health and safety of the workplace in a manner consistent with any provision of law; and 6) schedule a meeting during work hours at least once per quarter. Employers must also permit safety committee designees to attend a training on the function of worker safety committees, rights established under Section 2 of the Act, and an introduction to occupational safety and health without loss of pay.
Employers are prohibited from retaliating against any employee who participates in the activities or establishment of a workplace safety committee. Employers who violate the anti-retaliation provision may be subject to penalties, including: 1) assessment of a civil penalty from $1,000 to $10,000; 2) injunctive relief; 3) liquidated damages up to $20,000; 4) costs and reasonable attorneys' fees to the employee; 5) ordering rehiring or reinstatement of the employee to their former position with restoration of seniority or an award of front pay in lieu of reinstatement, and an award of lost compensation and damages.
Conclusion
Employers will have to act promptly either to adopt the model airborne infectious disease exposure prevention plan once issued by the State or to develop their own plan in compliance with Section 1 of the Act given Section 1, absent amendment, goes into effect on June 4, 2021. Employers should consult with counsel to ensure that their plans and employee handbooks and health and safety policies are compliant with the HERO Act.
Footnote
1. In the event of a collective bargaining agreement, the collective bargaining representative shall be responsible for the selection of employees to serve as members of the committee. Section 2 of the Hero Act may be waived by a collective bargaining agreement, provided that the waiver explicitly references that Section.
Originally published May 17, 2021
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