Act Now: Employer Obligations Under New York HERO Act

Foley & Lardner LLP

Foley & Lardner LLPDon’t wait: New York employers must act now to comply with state-level infectious disease readiness requirements. By August 5, 2021, employers with worksites in New York must adopt a model infectious disease exposure plan or develop an alternative plan that meets or exceeds minimum standards under the New York HERO Act.

On May 5, 2021, Gov. Andrew Cuomo signed the New York Health and Essential Rights Act (NY HERO Act) into law. Enacted in response to the COVID-19 pandemic, the HERO Act aims to protect employees against exposure and disease during future airborne infectious disease outbreaks. The act added two sections to the New York Labor Law: § 218-b, regarding airborne infectious disease prevention plans, and § 27-D, governing workplace safety committees. The act applies to all employers in the state regardless of size, with the exception of state and government employers. “Employees” is defined broadly to encompass independent contractors, part-time workers and others.

As part of the act, the New York State Department of Labor (NYDOL), in consultation with the New York State Department of Health (NYDOH), released an Airborne Infectious Disease Exposure Prevention Standard (the Standard) and industry-specific Model Airborne Infectious Disease Exposure Prevention Plans (the Model Plans). Covered employers are required by August 5, 2021, to either adopt the applicable model plan or establish an alternative plan that meets or exceeds the Standard’s minimum requirements. Employers should distribute the plan to employees and incorporate it into employee handbooks; however, employers are not required at this time to activate the procedures set forth in their plans.

The Standard

The Standard establishes minimum health and safety requirements, as well as other employer obligations relating to exposure prevention plans:

Employee participation/distribution: Employers that adopt a plan different from the Model Plan must do so with “meaningful participation of employees . . . and such plan shall be tailored and specific to the hazards in the specific industry and worksites of the employer.” Accordingly, employers should solicit employee feedback on their plan prior to adoption. Employers are required to distribute the plan to employees within 30 days after establishing such a plan, within 15 days of reopening after a business closure due to an airborne infectious disease, to all new hires and, upon request, to any employee, the NYDOL or NYDOH.

Exposure controls: The Standard also requires employers to select appropriate exposure controls based upon the risks at their particular worksite. These controls include health screenings, face coverings, physical distancing, hand hygiene facilities, cleaning and disinfection and personal protective equipment.

Anti-retaliation measures: Further, the Standard contains anti-retaliation and anti-discrimination provisions. Employers may not retaliate against employees who: (i) exercise their rights under the Act, (ii) report violations of the Act to officials, (iii) report or seek assistance for an airborne exposure concern to an employer or official, or (iv) refuse to work, where such employee reasonably believes that such work exposes him or her, or other workers or the public, to an unreasonable risk of exposure to an airborne infectious disease, provided that the employer was notified of such working conditions and failed to cure them.

Plan activation: Employers are only required to activate their plans once the New York State Commissioner of Health designates a highly contagious communicable disease as a serious risk of harm to public health. In this event, employers must, among other requirements, activate the exposure controls in their plans, post a copy of the exposure prevention plan in a visible and prominent location at the worksite, assign enforcement responsibilities to a supervisory employee, monitor and maintain exposure controls, and conduct a verbal review of the plan and employees’ rights under the Act.

Penalties: Employers are subject to civil penalties of at least $50 per day for failure to adopt a plan, and not less than $1,000 or more than $10,000 for failure to abide by an activated plan. Repeat violations may result in increased penalties.

Private cause of action: An employee may bring an action seeking injunctive relief against an employer for violating its plan in a manner that creates “a substantial probability that death or serious physical harm could result to the employee . . .” Prior to bringing the action, an employee must first provide the employer with notice of the alleged violation, after which time the employer has 30 days to cure the alleged violation, unless the employer acted in bad faith and demonstrated an unwillingness to cure. An employee must bring a claim within six months from the date the employee has notice of the alleged violation. A court may award costs and attorney’s fees to the employer if the court finds that an employee’s claim is frivolous.

Workplace Safety Committees

A second section of the HERO Act, effective November 1, 2021, allows employees to form a joint labor-management workplace safety committee. The committee must be comprised of both employer and employee designees, with at least two-thirds nonsupervisory employees who are chosen by nonsupervisory employees. The Act authorizes committees to: (i) raise health and safety concerns, to which employers must respond; (ii) review health and safety policies, including policies enacted in response to laws, executive orders or guidance; (iii) participate in government workplace site visits; (iv) review employer-filed reports related to workplace health and safety; (v) meet quarterly during working hours for up to two hours; and (vi) allow committee members to attend a training, not to exceed four hours, on occupational health and safety and the function of worker safety committees.

Employers face uncertainty regarding what actions, if any, to take at this time. The Act does not require employers to establish a committee; rather, it requires employers to allow employees to form such a committee: “[e]mployers shall permit employees to establish and administer a joint labor-management workplace safety committee” (emphasis added). Nevertheless, some employers may prefer to proactively form a safety committee by November 1.

Next Steps for Employers

To comply with the HERO Act, employers should promptly take the following actions:

  • Establish an Airborne Infectious Disease Exposure Prevention Plan by August 5, 2021. At this time, employers are not required to activate the procedures set forth in their prevention plans.
  • Designate supervisory individual(s) responsible for enforcing the plan.
  • Solicit employee feedback to incorporate into plan.
  • Integrate plan into employee handbook.
  • Distribute the plan to employees within 30 days after adoption, but no later than September 4, 2021.
  • Obtain and properly store personal protective equipment and other exposure controls in preparation for an infectious disease outbreak.
  • Designate supervisory individual(s) to conduct a verbal review of the plan in the event of an outbreak.
  • Consider establishing a joint labor-management safety committee by November 1, 2021.
  • Note the additional actions employers must take should the NYDOL require plans to be in effect.

The Model Plans released by the NYDOL may contain provisions that are not applicable to all workplaces. Employers are encouraged to speak with their Foley employment attorney to best ensure compliance with the act.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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