In an effort to prevent the occupational exposure to an airborne infectious disease, the New York legislature has passed the aptly named New York Health and Essential Rights Act, or NY HERO Act, which amends the New York Labor Law (NYLL) by adding two new sections.1 This bill has been delivered to Governor Cuomo’s desk and he is expected to sign it into law. Unlike other states, New York does not have robust and longstanding state occupational safety and health laws, standards and mechanisms. This bill is therefore notable because it represents one of the rare times that New York State has passed laws setting minimum safety standards that apply to the private sector. Section 1 of the Act requires that employers prepare model safety plans, and prohibits discrimination and retaliation against any employees who exercise their rights under the Act. Section 2 requires certain employers to establish joint workplace safety committees with their employees.
Who is Covered?
The Act defines “employees” broadly to include those individuals “providing labor or services for remuneration” as well as, among others, part-time workers, independent contractors, domestic workers, home health and personal care workers, and seasonal workers. State and other governmental agency employees are excluded from the Act’s protections and state and governmental agency employers are exempt from the Act. Otherwise, the Act covers all employers in the state, regardless of size.
Model Safety Plans
Section 1 of the Act requires the New York State commissioner of labor, in consultation with the New York State Department of Health, to create and publish a model airborne infectious disease exposure prevention standard for all work sites, differentiated by industry, and to establish minimum requirements for preventing exposure to airborne infectious diseases in the workplace. In establishing these minimum requirements, the labor commissioner is tasked with developing protocols to address the following topics: (1) employee health screenings; (2) face coverings; (3) personal protective equipment (PPE) required by industry and at the employer’s expense; (4) hand hygiene; (5) cleaning and disinfecting of shared work equipment and surfaces (i.e. telephones and doorknobs); (6) social distancing protocols; (7) mandatory or precautionary isolation or quarantine orders; (8) engineering controls; (9) assignment of enforcement responsibility of the safety plan and federal, state, and local protocols to one or more supervisory employees; (10) compliance with employee notice requirements; and (11) verbal review of standards, policies and employee rights.
The Act requires the labor commissioner to publish these industry-specific airborne infectious disease exposure prevention standards in both in English and Spanish in addition to other languages depending on population and languages spoken in certain industries.
Employers have the choice to either adopt the labor commissioner’s model airborne infectious disease exposure prevention plan or to create their own safety plan that meets or exceeds the minimum standards established by the labor commissioner. If an employer chooses to establish its own airborne infectious disease exposure prevention standards, it must do so in consultation with collective bargaining representatives, or in a non-unionized workforce, with employee participation, and be customized to incorporate industry-specific hazards and worksite considerations.
Employers are required to distribute the plan to employees in both English and in an employee’s primary language if other than English upon hire (provided there is a model policy developed in that specific language) and upon reopening after business closure due to an airborne infectious period. Employers must also post the plan at the worksite and incorporate the plan into an employee handbook if the employer maintains a handbook. Moreover, 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.
Discrimination and Retaliation Prohibited
Section 1 of the Act also prohibits discrimination and retaliation against employees. Employers cannot “discriminate, threaten, retaliate against, or take any adverse action” against employees for: (1) exercising their rights under the Act or the employer’s plan; (2) reporting violations of the Act or the employer’s plan to officials; (3) reporting or seeking assistance for an airborne exposure concern to an employer or official entity; or (4) refusing to work when the employee, acting in good faith, believes that dangerous exposure caused by working conditions inconsistent with laws or the required safety plan exists, with certain exceptions.
The Commission may assess civil penalties in the amount of $50 per day for an employer’s failure to adopt a plan and no less than $1,000 and not more than $10,000 for failing to follow a plan. The Act also permits employees in some instances to seek injunctive relief and for the courts to award costs, including attorneys’ fees and liquidated damages up to $20,000.
Joint Labor-Management Workplace Safety Committee
Section 2 will be codified in section 27-d of the New York Labor Law. The Act applies to employers that employ at least 10 employees or have an annual payroll of over $800,000 and a “workers’ compensation experience modification rating of more than 1.2.” These covered employers must permit employees to establish and administer a joint labor-management workplace safety committee. The committee must be comprised of at least two-thirds non-supervisory employees who are chosen by non-supervisory employees (unless a CBA exists, in which case the collective bargaining representative will choose). The Act also authorizes the creation of multiple committees representing geographically distinct worksites. Covered employers are not permitted to interfere with the selection of employees who serve on this committee.
The Act authorizes committees to: (1) raise health and safety issues to employers; (2) review and comment on health and safety policies; (3) review policies enacted in the workplace in response to, among other things, laws and executive orders; (4) participate in government workplace site visits; (5) review employer-filed reports pertaining to workplace health and safety; and (6) schedule and meet quarterly during working hours. Employers are not permitted to retaliate against employees involved in safety committees.
It is safe to assume that it will take the labor commissioner some time to devise, write and publish the industry-specific model plans contemplated by the Act. Employers should use the lead time, before these standards are published, to evaluate their return-to-work guidelines and facilities to evaluate areas that may need to be reconfigured to comply with likely safety mandates. Employers should also make any budgetary allowances to prepare for the likelihood that additional expenditures will needed to comply with the PPE and cleaning mandates in the Act. Employers can also begin preparing revisions to employee handbooks to ensure these new laws are incorporated, and devise a plan for dealing with greater employee involvement in health and safety policies.