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New York HERO Act
New York HERO Act
By Melissa L. Green, Esq.
On May 7, 2021, Governor Andrew Cuomo signed the “New York HERO Act” (the “Act”) into law. Under the Act, the state aims to prevent occupational exposure to airborne infectious disease, including COVID-19. The Act requires employers to develop workplace health safety plans in order to prevent the spread of airborne communicable illnesses, and to allow employees to establish and administer a joint labor-management workplace safety committee.
In a memorandum attached to the signed bill, Governor Cuomo requested “technical changes” that will likely delay the implementation of the law. Specifically, Governor Cuomo has requested that the legislature provide employers with an opportunity to cure any failure to comply with the law, provide more detailed instruction on the development and implementation of workplace standards, and limit litigation to circumstances where employers are acting in bad faith and refuse to cure deficiencies. As written, the Act requires employers to have a health and safety plan in place thirty (30) days following the effective date of the law, and to allow employees to establish a joint labor-management workplace safety committee within six (6) months. However, it is likely that the dates will be delayed following the legislative edits. Below is a summary of what we know so far about the obligations the new law will place on employers.
Health and Safety Plan
The New York State Department of Labor (“DOL”), in consultation with the New York State Department of Health (“DOH”), has been tasked to prepare a model airborne infectious disease plan (“Employer Safety Plan”), and establish minimum requirements for preventing exposure to airborne infectious diseases. Under the law, the DOL must establish minimum safety requirements for worksites, differentiated by industry. Once the DOL has established a model Employer Safety Plan, employers will have the choice to adopt the model or to create an Employer Safety Plan on their own with the same minimum standards express by the DOL in the model.
The Act provides some requirements that must be included in the model, but leaves it to the DOL to include any other matters the DOL Commissioner finds relevant. Similar to the protocols issued by other governmental agencies in the last year – the DOL is required to include procedures and methods for the following:
- Employee health screenings
- Face coverings
- Personal protective equipment (“PPE”)
- Accessible hand hygiene stations
- Cleaning/disinfecting shared equipment and frequently touched surfaces
- Effective social distancing procedures (as warranted)
- Compliance with mandatory or voluntary precautionary orders of isolation or quarantine
- Compliance with applicable engineering controls (i.e. air flow, ventilation, etc.)
- Designation of one or more supervisory employers to enforce compliance
- Legal/regulatory compliance
- Retaliation requirements
Importantly, where an employer opts to create their own Employer Safety Plan, the Act requires “meaningful participation of employees” (or of the appropriate collective bargaining representative, if applicable). Further, all employees must be provided with a copy of the Employer Safety Plan on the effective date of the act, or upon hiring, whichever is later. The Employer Safety Plan must also be included in employee documents, and posted “in a visible prominent location” in the worksite. Unlike the emergency, temporary, COVID-19 regulations passed through various gubernatorial orders in the spring and fall of 2020, or the recommendations and best practices that continue to be released by federal employment and protective agencies, the Act is now a part of New York law.
Finally, under the Act employers are prohibited from retaliating against employees for exercising their rights, reporting violations, or refusing to work after a violation of the Employer Safety Plan. The DOL is given the authority to issue fines to employers for violating the Act. As discussed above, Governor Cuomo signed the Act after the legislature agreed to revisions including allowing a cure period before an employer may be subject to litigation. It is unclear if the same protections will be built in for civil penalties.
Workplace Safety Committee
The Act also requires employers to “permit employees to establish and administer a joint labor-management workplace safety committee.” The legislative intent appears to have been to target larger corporations. Nonetheless, employers of any size are obligated to meet this requirement. It is unclear if the legislative modifications will include clarification on the process required for employees to request the formation of such committee. If such committee is formed, however, it is authorized to:
- Raise health and safety concerns, hazards, complaints, and violations
- Review any policy put in place in the workplace required by the Act (i.e. the Employer Safety Plan), or any provision of workers’ compensation law
- Participate in governmental site visits
- Review any report filed by the employer related to the health and safety of the workplace
Further, employers are required to allow employees to attend: 1) training on the function of worker safety committees, 2) an introduction to occupational safety and health, and 3) committee meetings on a quarterly basis. Employees are entitled to their usual compensation for the aforementioned activities. Employers may not retaliate against employees for participating in establishing a workplace safety committee.
Conclusion
Although the Act is awaiting revision, and guidance will certainly be forthcoming from the DOL regarding employer obligations, it is never too early to begin assessing corporate compliance. For those New York businesses that established return to work plans in the spring and summer of 2020, the Employer Safety Plan may very well be a revised version of similar plans already in place. However, for entities and organizations that are not used to employee involvement at the level that will be required by the employee safety committee (if formed), the Act may require some adjusting in the coming months. Regular examination of corporate compliance with local, state, and federal laws and regulations should be a part of your corporate planning. For assistance with compliance, or to discuss other laws and regulations that may impact your business, reach out to your usual firm contact, or contact Melissa Green ([email protected]).
