On May 5, 2021, New York Governor Andrew Cuomo signed into law the “New York Health and Essential Rights” or “HERO” Act, adding new infectious disease prevention requirements for employers. The Act seeks to create enforceable safety and health standards aimed at mitigating COVID-19 as well as other infectious diseases in the workplace. It adds two new, significant responsibilities for covered employers: (1) the development of infectious disease exposure prevention plans, and (2) the creation of “joint labor-management workplace safety committees.”

Exposure Prevention Standards and Model Plans

First, the HERO Act calls for all private-sector employers to adopt “prevention plans” that meet or exceed new infection prevention standards to be published by the state.

Specifically, the New York Department of Labor (“DOL”) (in consultation with the N.Y. Department of Health) will promulgate “model airborne infectious disease exposure prevention standards” for various types of “work sites” in different industries. These minimum standards will include details on:

  • employee health screenings
  • personal protective equipment (including face coverings)
  • hand hygiene, including “adequate break times” for use of handwashing facilities
  • cleaning and disinfection
  • social distancing
  • abiding by quarantine requirements
  • engineering controls, such as workplace air flow and exhausts.

Once the DOL publishes the new standards, all private employers will be required to adopt either the relevant model “prevention plan,” or, an “alternative” prevention plan that meets or exceeds the model safety standard for their work sites. If adopting an “alternative” plan, the Act requires employers to develop the plan with “meaningful participation” of employees. Employers will be required to include the plan in employee handbooks and must post the plan prominently within the worksite.

“Work sites” under the Act include any physical space where work is performed (including vehicles, employer-provided housing, and employer-provided transportation), but, will not cover home residences for employees working remotely.

The Act carries stringent anti-retaliation provisions. Employers are prohibited from taking adverse action against employees who refuse to work if the employee has a reasonable, good-faith belief that their worksite carries “an unreasonable risk of exposure,” and, the employer fails to “cure” the risk.

Joint Labor-Management Safety Committees

Second, in addition to mandatory prevention plans, private-sector employers with at least ten employees must permit employees to create “joint labor-management workplace safety committees.” The committees will have power to:

  • Raise health and safety concerns which employers must respond to
  • Review and provide feedback on certain workplace health and safety policies
  • Review employer adoption of any workplace policy in response to any health or safety law
  • Participate in site visits by governmental authorities
  • Review reports filed by the employer regarding health and safety
  • Regularly schedule meetings during work hours at least once per quarter

The Act regulates the makeup of safety committees. Two-thirds of the committee must consist of non-supervisory employees. All employee members of the committee must be selected by non-supervisory employees. “Supervisors” are defined by the Act as employees with authority to direct and control other employees’ work performance, or, those with managerial authority to take corrective action. For employers with existing collective bargaining relationships, the collective bargaining representatives will be responsible for selecting employees to serve as committee members.

Next Steps

Finally, the Act includes strong enforcement provisions. The DOL may investigate and penalize employers for failing to abide by the law’s requirements, with a maximum penalty of $20,000. Employees may also bring an action in court for violations of the law and seek injunctive relief. If successful, plaintiffs may recover reasonable attorneys’ fees and up to $20,000 in liquidated damages.

The Act’s prevention plan requirements go into effect on June 4, 2021, however, it is unclear whether the Department of Labor’s model plans will be available by that date. The Act’s safety committee requirements take effect on November 1, 2021.

Employers, HR professionals, and compliance officers should monitor for the DOL’s publication of the model standards and prepare to implement safety committees within their organizations.

This alert is not a substitute for advice of counsel on specific legal issues.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.