|To further address and prevent the spread of COVID-19 and other airborne infectious diseases in the workplace, Governor Cuomo has signed into law Senate Bill 1034-B/Assembly Bill 2681-B, the New York Health and Essential Rights (“HERO”) Act. |
The HERO Act codifies and supplements various health standards issued by the Governor throughout the pandemic and amends the New York Labor Law to add two new sections: (1) Section 218-b requiring all private employers to implement workplace safety plans, and (2) Section 27-d requiring certain employers to allow employees to establish workplace safety committees. Upon signing the HERO Act, the Governor announced that certain technical changes would be forthcoming, including a timeline for implementation of the safety plans.
We are monitoring the progress of legislation that would amend the Act. Here are some important points employers need to know now about the HERO Act: First, all New York private employers will be required to develop and implement an airborne infectious disease exposure prevention plan (“IDEPP”): Although the HERO Act is effective as of June 4, 2021, it does not provide a specific date by which employers must promulgate IDEPPs. Our understanding is that employers are not required to implement their IDEPPs until after the New York State Commissioner of Labor, in consultation with the Department of Health, issues model plans for all worksites, differentiated by industry. Under the proposed amendment, employers will have 30 days after the Commissioner publishes the models to adopt their own plans. If employers choose not to use a model plan, they must work with labor unions or, if none, directly with employees to develop a customized plan that meets or exceeds the model.
Although motivated by experiences with the COVID-19 pandemic, the Act requires that IDEPPs apply beyond coronavirus to any infectious viral, bacterial, or fungal disease that is designated by the Commissioner of Health as a highly contagious communicable disease and which is spread through the air in the form of aerosol particles or droplets.
IDEPPs must include protocols to prevent exposure to airborne infectious diseases in the workplace, including procedures and methods for:Employee health screenings;Face coverings;Personal protective equipment (provided at the employer’s expense);Hand hygiene stations and breaks;Cleaning and disinfecting of shared equipment and frequently touched surfaces;Social distancing;Compliance with mandatory or precautionary orders of isolation or quarantine issued to employees;Engineering controls (e.g., proper airflow and exhaust ventilation);Designation of supervisory employees to enforce compliance;Compliance with notice requirements to employees and applicable agencies of potential exposure; andVerbal review of safety standards, employer policies, and employee rights.
Employers must post the IDEPPs at the workplace and distribute them to all current employees and to new employees upon hire in both English and the employee’s primary language, if other than English. Employers must also circulate IDEPPs upon reopening in the event of a workplace closure resulting from an airborne infectious period. The IDEPP must also be included in any employee handbook and be made available for review upon request by employees, independent contractors, employee representatives, the Commissioner of Labor, or the Commissioner of Public Health.
Employees are protected from discrimination and retaliation for exercising their rights under the Act or an IDEPP, reporting violations of the Act or IDEPP, or reporting or seeking assistance with respect to disease exposure concerns. Employees also are protected where they refuse to return to work based on good faith, a reasonable belief they will expose themselves, co-workers, or the public to an unreasonable risk of exposure to infectious disease due to working conditions inconsistent with health standards, provided that the employer was notified or should have known about the conditions and failed to remedy them.
Aggrieved employees can file a complaint with the Department of Labor or bring a private action in court. The Department is empowered to issue injunctive relief and fines in the amounts of:
$50 per day for failure to adopt an IDEPP plan; $1,000-$10,000 for failure to comply with an IDEPP plan; andAdditional fines for repeat offenders. In a civil action, employees can receive injunctive relief, attorneys’ fees and costs, and liquidated damages (up to $20,000). Employers avoid liquidated damages by establishing they had a good faith basis to believe they were acting in compliance with the standards of the Act. Courts also may award sanctions for meritless claims or defenses.
Second, as of November 1, 2021, New York private employers with 10 or more employees must allow employees to form joint labor-management workplace safety committees: A safety committee must be comprised of at least two-thirds non-supervisory employees (chosen by non-supervisory employees or, if a collective bargaining agreement is in place, by the collective bargaining representative) and co-chaired by a representative of the employer and non-supervisory employees. Employees may form separate committees representing geographically distinct worksites. Employers and unions can waive the right to such committees by collective bargaining agreement.
Employers must allow employee members of safety committees to attend training on the function of such committees, rights under the Act, and an introduction to occupational safety and health without loss of pay.
A safety committee is authorized to:Raise health and safety concerns to the employer (to which the employer must respond);Review and provide feedback on health and safety policies;Review the adoption of any policy in response to any health and safety law, executive order, or another directive;Participate in any site visit by government health and safety officials;Review any report filed by the employer related to health and safety; andAttend quarterly meetings during work hours.
The Act prohibits retaliation against employees for participating or requesting to participate on a safety committee.
We are keeping a close watch on the proposed amendments to the HERO Act and for the issuance of the Commissioner of Labor’s model plans. In the interim, employers should review existing safety protocols and begin planning how they will comply with the Act.
|If you have any questions relating to the HERO Act or would like guidance in developing and implementing an Infectious Disease Exposure Prevention Plan or other policies, please feel free to reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.|