Earlier this month, Governor Cuomo signed the New York Health and Essential Rights Act (the “HERO Act”) into law, amending the New York Labor Law. While this new law was sparked by the Covid-19 pandemic, its requirements apply generally to airborne infectious diseases and require action by all private New York employers.
Health and Safety Standards: Infectious Disease Exposure Prevention Plans
By June 4, 2021, the Commissioner of Labor will create and publish model airborne infectious disease exposure prevention standards (by industry), establishing minimum requirements for preventing exposure to airborne infectious diseases in the workplace. The standard will include requirements with respect to:
- Employee health screenings
- Face coverings
- Personal protective equipment
- Hand hygiene facilities and break time
- Cleaning and disinfecting of shared equipment and surfaces
- Social distancing
- Compliance with isolation or quarantine orders
- Compliance with engineering controls
- Designation of one or more supervisory employees to enforce compliance with the program or related guidance
- Compliance with notice requirements to employees and government officials
- Policy communications
Then, every employer – regardless of size – will be required to establish, distribute and post an airborne infectious disease exposure prevention plan – either by adopting the model standard prepared by the Commissioner or by establishing an alternative plan that equals or exceeds the model’s minimum standards. Any alternative plan must be tailored and specific to the hazards of the specific industry and work site of the employer and should be made with meaningful employee participation.
Once adopted, the prevention plan will have to be provided to employees in both English and in the employees’ primary language (unless a model document is not available in that language from the DOL). Companies will also be required to include the prevention plan in any employee handbook maintained by the business.
Protections from Retaliation
Employers are specifically prohibited from discriminating, threatening, or retaliating against an employee for exercising their rights under the Hero Act, reporting violations, or refusing to work where the employee reasonably and in good-faith believes that such work would expose him or others to an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are not in compliance with the law, policy or orders of any governmental entity.
An employer that does not adopt an Infectious Disease Exposure Prevention Plan may be assessed a civil penalty of not less than $50 per day. And an employer that does not abide by the plan may be assessed between $1,000 and $10,000 for its first offense.
In addition, the law provides that employees may bring civil actions seeking injunctive relief against an employer alleged to have violated the plan in a manner that creates a substantial probability that death or serious physical harm could result from a condition that exists at the worksite. Successful employees may be entitled to costs and reasonable attorneys’ fees and liquidated damages of up to $20,000.
Giving Workers a Voice: Workplace Safety Committees
By November 1, 2021, employers with ten or more employees must permit employees to establish and administer a joint labor-management workplace safety committee, composed of employee and employer designees. At least two-thirds of the committee must be non-supervisory employees.
Each workplace safety committee and workplace safety designee will be authorized to perform the following tasks, including but not limited to:
- Raise health and safety concerns, to which the employer must respond.
- Review and provide feedback to workplace health and safety policies.
- Participate in any site visit by any governmental entity responsible for enforcing safety and health standards.
- Review employer reports related to the health and safety of the workplace.
- Regularly schedule a meeting during work hours at least once a quarter.
- Attend training, without loss of pay on the function of worker safety committees, legal rights , and an introduction to occupational safety and health.
Employers may not retaliate against any employee for participating in or establishing a workplace safety committee.
While all employers should start considering how they will comply with New York’s HERO Act, we must also stay tuned for likely amendments. Governor Cuomo indicated there would be technical changes to the bill, including more specific instructions, a clear timeline, and limits to lengthy court litigation to circumstances where employers are acting in bad faith.
Businesses should also keep in mind that the provisions of the HERO Act are in addition to the requirement that all businesses must develop a written business safety plan concerning how the workplace will prevent the spread of Covid-19.