On May 5, 2021, Governor Andrew Cuomo signed into law the New York Health and Essential Rights Act (“HERO Act”) (“the Act”). The Act requires employers to adopt a safety plan to prevent exposure to airborne infectious diseases in the workplace. The Act also prohibits retaliation against employees who report violations, or otherwise exercise their rights under the Act.

Employers can choose to either adopt an industry-specific model safety plan developed by the Department of Labor or create their own safety plan that meets or exceeds the standards set forth in the model plans. In the event that an employer adopts their own plan, the employer must consult with their employees or collective bargaining representatives during the drafting process. New York State employers have until August 5, 2021 to either adopt one of the model plans or create their own. Failure to adopt and abide by a new safety plan can result in financial penalties.

Definition of “Employer”

First, The HERO Act covers any entity, business, corporation, partnership, limited liability company, or association that employs or pays for the labor of any individual in any field. The Act does not cover the state, any political subdivision of the state, public authorities, or any other governmental agency.

Requirements

Next, the Act sets forth a series of items that must be addressed by the plan that the employer ultimately adopts. The Department of Labor’s published model safety plans appropriately address these items. An employer’s adopted safety plan must address the following:

  1. Employee health screenings
  2. Face covering requirements
  3. Required PPE
  4. Accessible workplace hand hygiene stations
  5. Regular cleaning and disinfecting of shared equipment, doorknobs, bathrooms, dining areas, etc.
  6. Effective social distancing measures for employees and consumers or customers, including plans to deliver services remotely, reconfigure workspaces, etc.
  7. Compliance with mandatory or precautionary orders of isolation or quarantine that have been issued to employees including separate and appropriate accommodations for employees who reside in employer-provided housing
  8. Compliance with applicable engineering controls such as proper air flow, exhaust ventilation, or other special design requirements
  9. Designation of one or more supervisory employees to enforce compliance with the airborne infectious disease exposure prevention plan and any other federal, state, or local guidance
  10. Compliance with any applicable laws, rules, regulations, standards, or guidance on notification to employees and relevant state and local agencies of potential exposure to airborne infectious disease at the work site
  11. Verbal review of infectious disease standard, employer polices and employee rights under the Act

Anti-Discrimination

In addition to the above list, the adopted plan must include an anti-retaliation clause pursuant to the anti-retaliation requirements set forth in the Act itself. Specifically, the Act forbids employers from discriminating against, threatening, retaliating against, or taking adverse action against any employee for:

  1. Exercising rights under the Act
  2. Reporting violations
  3. Reporting an airborne infectious disease exposure concern or seeking assistance
  4. Refusing to work where such employee reasonably believes in good faith that such work exposes him to an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions inconsistent with laws, rules, policies, or orders of any government entity including these plan standards. Provided employee notified employer about conditions

Safety Committee

Employers must permit employees to establish a joint labor-management workplace safety committee. The Act allows one committee per worksite, though committees representing geographically distinct worksites are permissible if necessary. The committee must be comprised of employer and employee designees, with at least two-thirds non-supervisory employees who are chosen by non-supervisory employees. If a collective bargaining agreement exists, the collective bargaining representative chooses the non-supervisory employees who will serve on the safety committee. Employers are not permitted to interfere with the selection of employees who serve on this committee. These safety committees have the authority to do the following:

  1. Raise health and safety concerns
  2. Review workplace health and safety policies
  3. Review workplace policies adopted in response to newly enacted laws
  4. Participate in government worksite visits
  5. Review reports filed by employers related to workplace health and safety
  6. Regularly schedule meetings during work hours (at least once per quarter)
  7. Attend workplace health and safety trainings without loss of pay

Distribution

Employers must distribute the plan to employees within 30 days after implementing the plan, upon hire, and within 15 days of reopening after business closure due to an airborne infectious period. The plan must be distributed in English and in an employee’s primary language if other than English. Employers must also post the plan at the worksite and incorporate the plan into an employee handbook if the employer maintains a handbook. Finally, employers must make the plan available for review upon request by an employee, independent contractor, employee representative, collective bargaining representative, the labor commissioner or to the commissioner of public health.

Published Plans

The Department of Labor has published eleven different industry-specific plans to date. These industry-specific plans can be found on the Department of Labor website (https://dol.ny.gove/ny-hero-act). The Department of Labor has released model plans for the following industries:

  1. Agriculture
  2. Construction
  3. Delivery Services
  4. Domestic Workers
  5. Emergency Response
  6. Food Services
  7. Manufacturing and Industry
  8. Personal Services
  9. Private Education
  10. Private Transportation
  11. Retail

If an employer chooses to establish its own plan, it must do so in consultation with collective bargaining representatives. If the employer has a non-unionized workforce, the Act requires “meaningful” employee participation in the drafting process.

Penalties

Failure to adopt a plan can result in penalties of up to $50 per day for each day the employer fails to adopt a plan. Failure to follow an adopted plan can result in a penalty of no less than $1,000 and no more than $10,000.

Employee Private Right of Action

Employees may bring a civil action seeking injunctive relief against employers alleged to have violated an adopted plan in a manner that creates a substantial probability that death or serious physical harm could result from a condition which exists, unless the employer did not and could not know of the presence of the violation while exercising reasonable diligence. However, an employee bringing suit must provide the employer with advanced notice of the alleged violations. The Court may enjoin the employers conduct or order the payment of liquidated damages of no greater than $20,000 on top of reasonable attorney’s fees.