On May 5, 2021, Governor Cuomo signed the New York Health and Essential Rights Act (commonly referred to as NY HERO Act) into law, noting that the final version would be subject to chapter amendments. The NY HERO Act applies to private employers, and their employees, and combats concerns raised during the ongoing COVID-19 pandemic by mandating certain workplace health and safety measures for airborne infectious diseases. This law contains significant changes and obligations for private employers, including those summarized below.
Airborne Infectious Disease Exposure Prevention Standards and Plans
Part one of the NY HERO Act will require private employers to create and implement airborne infectious disease exposure prevention plans in their workplaces. Employer’s won’t be left completely in the dark when creating their plans. The New York State Department of Labor (NYDOL) is tasked with creating industry-specific model standards that will set forth the minimum requirements for preventing exposure to airborne infectious diseases in the workplace. Employers can establish their airborne infectious disease exposure prevention plans either by adopting the NYDOL’s model standard, or establishing an alternative plan that meets or exceeds the minimum standards. Although the plans are not specific to COVID-19, employers can expect to see familiar topics covered, such as personal protective equipment, social distancing, isolation/quarantine protocols, disinfecting, and ventilation. Plans must be available for inspection by employees, contractors, and government entities, given to every employee and new hire, posted in the workplace, and published in the employee handbook (if the employer has one).
Employers who fail to adopt plans, or who fail to abide by their adopted plans, will be subject to significant civil monetary penalties. The law also creates a private right of action for employees to seek injunctive relief against employers who violate the airborne infectious disease exposure prevention plan in a manner that “creates a substantial probability that death or serious physical harm could result.”
As currently written, this portion of the NY HERO Act will go into effect on June 4, 2021. However, currently pending chapter amendments would adjust the timeline and require employers to adopt plans within 30 days of the NYDOL publishing the model standards.
Workplace Safety Committees
Part two of the NY HERO Act, which takes effect on November 1, 2021, addresses the creation of Workplace Safety Committees, and will be codified in NY Labor Law Section 27-d. Employers with 10 or more employees must permit employees to establish and administer joint labor-management workplace safety committees. Any established committee must be composed of (and co-chaired by) both employee and employer designees, but at least two-thirds must be non-supervisory employees.
Among other things, the committees could: raise health and safety concerns, report violations to the employer (to which the employer must respond), review relevant policies, participate in on-site visits by a governmental entity responsible for enforcing health and safety standards, review employer reports related to health and safety, and conduct quarterly meetings during work-hours.
The NY HERO Act contains various non-retaliation provisions. First, the employer’s airborne infectious disease exposure prevention plan must prohibit retaliation against employees who:
- exercise their rights under the NY HERO Act;
- report violations of the NY HERO Act or the employer’s plan to a government entity;
- voice airborne infectious disease exposure concerns to a government entity or their employer, or;
- refuse to work because they believe there is a unreasonable risk of exposure to airborne infectious diseases because of working conditions that are inconsistent with the plan, or other law, provided that the employee “notified the employer of the inconsistent working conditions and the employer failed to cure the conditions or the employer had or should have had reason to know about the inconsistent working conditions and maintained the inconsistent working conditions.”
Additionally, employers are prohibited from retaliating against workplace safety committee members and must permit committee designees to attend trainings (without loss of pay) on the function of worker safety committees, rights established under the NY HERO Act, and an introduction to occupational safety and health.
On May 10, 2021, chapter amendments to the NY HERO Act were introduced to the legislature and referred to the Assembly’s Labor Committee. These chapter amendments, if passed, would affect the timeline for adoption of airborne infectious disease exposure prevention plans (although non-retaliation provisions would still take effect on June 4, 2021). The amendments would also make private litigation under the NY HERO Act more difficult by imposing attorney fees awards for frivolous cases and generally prohibiting suit until the employee gives the employer 30 days’ notice to correct an alleged NY HERO Act violation. Chapter amendments would also benefit employers by limiting the number of hours that workplace safety committees can meet and limiting the amount of paid training hours.
We will provide additional information and updates regarding the NY HERO Act as developments unfold. In the meantime, Harter Secrest & Emery’s Labor and Employment attorneys are here to answer any questions you may have regarding the legislation. Please contact any Labor and Employment team member at 585.232.6500 or 716.853.1616.