On September 6, 2021, New York Governor Hochul designated COVID-19 a “highly contagious communicable disease.” With this designation, employers now have obligations under the New York Health and Essential Rights Act (“HERO Act”) that go well beyond simply adopting one of the model prevention plans. Since we should all expect the designation to continue, it is only a matter of time before the Department of Labor (“DOL”), collective bargaining representatives, and/or employees pursue claims against employers who fail to comply with the enhanced requirements in the Act. The good news, while compliance is tedious and will take some time, it is easily accomplished. We recently presented a webinar on the HERO Act which we wanted to share with you. The link to the webinar is below and is free if you use the code BRomeLLP. The one-hour webinar is a step-by-step guide to complying with the Act’s provisions.
Here is a summary of some key provisions that you need to be aware of:
- The Act’s definition of “employee” incudes independent contractors, individuals working for staffing agencies, and contractors or subcontractors in addition to traditional employees.
- “Work site” includes vehicles if the employer has control over the vehicle. Thankfully, “work site” does not include the employee’s home unless the employer exercises control over the site, g., employer-owned housing.
- While all employers should have adopted an airborne infectious disease exposure prevention plan by August 5, 2021, with the Governor’s recent designation, those plans need to modified.
- All employers must adopt one of the DOL’s Model Plans or an alternative plan that equals or exceeds the minimum standard in the Model Plan. Model Plans can be found here: NY HERO Act | Department of Labor. An alternative plan must be negotiated with a collective bargaining representative or “with meaningful participation of the employees” if not represented. We recommend adopting a Model Plan.
- Now that COVID-19 has been designated a “highly contagious communicable disease,” the employer must complete several of the boxes in the Model Plan. For example, the Model Plan should be modified to list: 1) the names of supervisory employees charged with compliance with the Plan; 2) engineering controls adopted to comply with the Plan; 3) administrative controls, e., policies and work rules used to prevent exposure, adopted to comply with the Plan; 4) PPE required at the work site; and 5) dates the plan was reviewed and revised during the outbreak.
- Employers should disseminate the revised Plan to their employees, keep a record of the dissemination or have employees sign acknowledging receipt, post it in a prominent place, add it to any employee handbook, make it available upon request and review the Plan with employees.
- Employers must permit employees to establish safety committees and administer a joint labor-management committee. There are specific rules regarding the makeup of the committee and the compensability of time spent in committee meetings.
We recommend that the employer document all of its efforts to comply with the Act as follows:
- Modify the Model Plan as required.
- Publish it to employees and obtain acknowledgment of receipt either in writing or electronically.
- Post it prominently at each work site and add it to the Employee Handbook.
- Review the plan with employees and maintain a record confirming attendance.
- Incorporate the plan review into new employee orientation.
- Ensure all independent contractors are included in these efforts.
- Establish a safety committee unless one already exists.
- Ensure employees have a clear understanding as to whom any violations are to be reported and emphasize the anti-retaliation provisions of the plan.
- Designate someone in the organization to maintain compliance with the Act moving forward.
In short, there are many technical requirements that need to be addressed and a record of compliance must be maintained. We believe that if the Department of Labor visits a worksite, maintaining a binder, log, or folder documenting the employer’s efforts to ensure compliance with the Act will be crucial to avoiding potential fines. We recommend creating a binder with the Model Plan as modified and records demonstrating dissemination, employee meetings, safety committee meeting notes, etc. If the DOL visits, all of your documents are easily inspected.