[co-author: Christopher Shur - Law Clerk
Taking the lead on permanently enshrining COVID-19-related health and safety protocols into law, on May 5, 2021, New York Governor Andrew Cuomo signed A2681B/S1034—the Health and Essential Rights Act (“HERO Act” or “Act”). The Act requires that, by June 4, 2021, the New York State Department of Labor (“NYSDOL”), in consultation with the State Department of Health, develop an industry-specific model airborne infectious disease exposure prevention standard (“model standard”) that sets forth “minimum requirements for preventing exposure to airborne infectious diseases in the workplace.” Employers must then adopt the model standard or implement their own plan that meets or exceeds the model standard’s requirements.
In addition, the HERO Act mandates that, by November 1, 2021, all private employers with at least 10 employees allow their employees to establish and administer a joint labor-management workplace safety committee (“workplace safety committee”). As discussed more fully below, such committees will have a range of responsibilities and authority, from raising health and safety concerns and reviewing policies adopted by the employer in response to the Act, to participating in site visits by a government agency.
In an announcement, Governor Cuomo described the HERO Act as “a historic step forward for working people and a preventative measure that will ensure we’re better prepared for the next public health crisis.” The governor also highlighted the workplace safety committee provision, which he said “gives workers a voice in the process so employers aren't the sole arbiters of workplace safety from disease.”
Elements of the Model Standard
In developing the model standard, the NYSDOL must take into account the nature of the risks present at the work site, including the presence of third parties. The model standard also must “explicitly specify and distinguish the extent to which the provisions are applicable for different levels of airborne infectious disease exposure.” Further, the NYSDOL is instructed to consider circumstances where a state of emergency has or has not been declared due to an airborne infectious disease.
Using the above assessment criteria, the NYSDOL will create a model standard that establishes requirements on procedures and methods for:
- conducting employee health screenings;
- ensuring workers have appropriate face coverings;
- providing necessary personal protective equipment (“PPE”), based on hazard assessments specific to each industry, which the employer will make available (pursuant to a list of required PPE supplied by the NYSDOL), pay for, and maintain in a sanitary condition;
- creating accessible workplace hand hygiene stations and protocols, and ensuring that employees have adequate break times to use handwashing facilities;
- regularly cleaning and disinfecting shared equipment and frequently touched surfaces and high-risk areas, such as restrooms;
- maintaining effective social distancing protocols for employees, customers, and others as the risk of illness may warrant, such as floor markings, limited capacity rules, reconfigured facility space, and flexible meeting and travel options, work sites, and work schedules;
- complying with mandatory or precautionary orders of isolation or quarantine issued to employees;
- ensuring proper air flow, exhaust ventilation, or other such requirements;
- assigning one or more supervisors the responsibility to ensure compliance with the employer’s health and safety plan and any applicable federal, state, or local laws, rules, or guidance on preventing the spread of an airborne infectious disease (non-supervisory line employees “shall not bear responsibility for overseeing compliance with the requirements of the model policy”);
- complying with any obligations to provide notice to employees and relevant state and local agencies of potential exposure to airborne infectious disease at the work site; and
- providing a verbal review of the infectious disease standard, employer policies, and employee rights under the Act (such review need not be provided to individuals working for staffing agencies, or to contractors or subcontractors).
The model standard must be published in English, Spanish, and any other language the Labor Commissioner deems warranted pursuant to the Act’s guidelines. Also, the model standard must include notice of the Act’s anti-retaliation provisions, as discussed below.
Adoption of an Alternative Plan
As noted above, an employer may develop its own airborne infectious disease exposure prevention plan instead of adopting the State’s model standard, as long as the alternative plan meets or exceeds the model standard’s requirements. The alternative plan must be tailored and specific to hazards in the relevant industry and work sites of the employer. Significantly, if an employer chooses to go this route, the HERO Act requires the employer to develop the plan “pursuant to an agreement” with the employees’ collective bargaining representative, if any, or “with meaningful participation of employees where there is no collective bargaining representative, for all aspects of the plan.” The Act does not define “meaningful participation”; presumably, the NYSDOL will provide guidance on this matter.
Upon reopening after a period of closure due to an airborne infectious disease and upon hire, every employer must give its employees a copy of the employer’s airborne infectious disease exposure prevention plan, in English and in an employee’s primary language if available from the NYSDOL. Businesses that are operating as of June 4, 2021, must provide copies of the plan to all employees on that date (or whatever other date the NYSDOL may designate) and upon hire thereafter. It is unclear when the NYSDOL will develop and post its model standard, but it is anticipated to likely be published prior June 4, 2021, so that employers that elect to adopt the model standard may do so in a timely manner. As discussed below, Governor Cuomo promised certain changes to the Act, and this ambiguity may be an area that is addressed. We will provide any updates as they become available.
Employers also must post the plan in a visible and prominent location within the work site. Additionally, employers are required to include the plan in their employee handbooks, if they provide their workers with handbooks.
Finally, every employer must make the plan available, upon request, to all employees, as well as independent contractors, employee representatives, collective bargaining representatives, the Labor Commissioner, and the Commissioner of Public Health.
The HERO Act includes provisions that relate specifically to covered workplaces in which there are employees represented by labor unions. While the Act does not limit any rights employees may have under a collective bargaining agreement (“CBA”), as discussed below in connection with workplace safety committees contemplated by the Act, union-represented employees and their unions may have an additional ability to participate in and shape the activities of these committees. The Act is unclear, however, as to how those provisions apply in those workplaces where different units of employees are represented by different unions. Further, the mandated plan provision of the Act may be waived by a CBA, but such waiver will be valid only if it explicitly references the Act. Thus, the HERO Act makes it likely that safety considerations addressed in the Act will become subjects of collective bargaining, particularly if an employer seeks a waiver in negotiations with its unions.
Governor Cuomo attached a memorandum to the HERO Act stating that he had reached an agreement with the New York Legislature to make technical changes to the Act. The specified changes include “providing for an immediate agreement for employers to cure violations in order to better protect the safety of workers and limit lengthy court litigation to those private rights of action, in limited circumstances where employers are acting in bad faith and failing to cure deficiencies.” The legislature also agreed to make technical changes that would provide the NYSDOL and employers more specific instructions in developing and implementing the workplace standards, including a clear timeline. The specific changes contemplated in the memorandum are not yet available. We will provide updates as they become available.
Potential OSHA Considerations
The structure and intent of the Act also raises a question as to whether New York has the authority under the federal Occupational Safety and Health Act of 1970 to implement an enforceable “airborne infectious disease standard.” New York has enforcement authority over state and local government entities, but—unlike many states—New York does not have an OSHA-approved “state plan” delegating to the state creation and enforcement of workplace safety standards in the private sector. California, Virginia, and a few other states have enacted similar emergency standards, but they all have OSHA-approved state plans for both the private and public sectors. OSHA has not issued guidance yet, but we will continue to monitor clarification on the intersection of the state and federal law in this regard.
Workplace Safety Committees
In addition to the plan mandate, the HERO Act requires private employers with 10 or more employees to allow their employees to establish and administer a joint labor-management workplace safety committee according to the following rules:
- A workplace safety committee must be composed of employee and employer designees, with at least two-thirds being non-supervisory employees.
- Employee members are to be “selected by, and from among, non-supervisory employees.” However, where a CBA is in effect, the collective bargaining representative is responsible for selecting employees to serve as members of the committee. The Act does not address the way that this will work on a practical level in workplaces where more than one union represents separate units of employees or how the processes will function where there are both unionized and non-union employees.
- A workplace safety committee must have co-chairs, i.e., a representative of the employer and a representative of non-supervisory employees.
- Each workplace safety committee and workplace safety designee is authorized to perform the following tasks, including, but not limited to:
- reporting concerns about health and safety matters and hazards, and making complaints about alleged violations of the plan or the Act to which the employer must respond;
- reviewing any workplace policy required by “any provision of this chapter” or any provision of the workers' compensation law and providing feedback regarding such policy;
- participating in any visit to the work site by a governmental entity responsible for enforcing safety and health standards;
- assessing any report filed by the employer related to the health and safety of the workplace; and
- scheduling meetings during work hours at least once a quarter.
Notably, due to apparent ambiguity in the statute, it is unclear whether the HERO Act empowers workplace safety committees and designees to review only those workplace policies that relate to the subject matter of the HERO Act, or if it applies more broadly. The Act uses, but does not define, the phrase “any provision of this chapter.” Since the Act has been enacted as a part of Chapter 27 of the New York Labor Law, this could apply to a much broader range of workplace conditions. We will provide updates as they become available.
As with the adopted plan, this provision of the Act does not diminish any rights or remedies employees have under a CBA. In addition, the parties to a CBA can waive the mandates of this section of the Act if the waiver explicitly references the section. It is unclear whether claims of retaliation under the Act would be subject to arbitration under a CBA or whether employees covered by a CBA will also be allowed to bring private causes of action for alleged retaliation under the Act.
The provisions allowing for such committees and prescribing employee participation and employer interaction with the committees potentially raise a number of issues concerning the intersection of the Act’s mandates and the developed body of law under the National Labor Relations Act (“NLRA”). In particular, the NLRA’s definitions of “labor organizations” (a term that is not limited to formal labor unions), restrictions on employers’ domination and control of such entities, and restrictions on employers that are “dealing with” labor organizations (not only unions) concerning terms and conditions will be at issue. Given the degree to which the Act imposes obligations on employers and unions with respect to safety plans, it is foreseeable that NLRA preemption challenges may be raised and that the legislature has exceeded its authority by imposing obligations on employers and unions in their dealings with one another.
Violations and Penalties
Employers that fail to comply with their airborne infectious disease exposure prevention plan, whether they adopt the model standard or create their own, could be assessed civil fines of up to $10,000 by the Labor Commissioner. The penalty for failing to adopt a plan is a minimum of $50 per day for each day a plan is not implemented. Additionally, if the Labor Commissioner finds the employer has previously violated the Act within the past six years, the employer may be assessed a fine of up to $20,000 for a subsequent failure to comply with its plan, and no less than $200 per day for a subsequent failure to implement a plan.
Notably, employees also can sue their employer for failing to comply with the Act. An employee who sues for an alleged violation of the adopted plan must demonstrate that the employer violated the plan in a manner that creates a substantial probability that death or serious physical harm could result, unless the employer did not and could not (with the exercise of reasonable diligence) know of the presence of the violation. The Act does not define “substantial probability” or “serious physical harm.”
Courts can grant injunctive relief or award a prevailing plaintiff up to $20,000 in liquidated damages and attorneys’ fees, unless the employer proves a good faith basis to believe that the established health and safety measures were in compliance with the applicable airborne infectious disease standard. The Act further permits a court to sanction an employer or attorney who asserts in bad faith a meritless defense, cross-claim, or counterclaim.
The HERO Act also prohibits employers and their agents from discriminating, threatening, retaliating against, or taking adverse action against employees for:
- exercising their rights under the Act or the employer’s plan (whether the employer adopts the model standard or develops an alternative plan);
- reporting alleged violations of the HERO Act or the employer’s plan to any state, local, or federal government entity, public officer, or elected official;
- reporting an airborne infectious disease exposure concern to, or seeking assistance or intervention with respect to such exposure concerns from, their employer, state, local, or federal government entity, public officer, or elected official;
- refusing to work when the 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; or
- participating in the activities or establishment of a workplace safety committee.
An employee may also sue for retaliation.
What New York Employers Should Do Now
Until the NYSDOL releases its model standard or a timeline for compliance, employers should begin to determine how best to comply with the Act’s plan requirements, which go into effect on June 4. Accordingly, all New York employers should take the following steps:
- Put aside the mandate on workplace safety committees for the moment and focus on the plan requirements, since the committees do not have to be up and running for another six months.
- Review the components of the model standard, once it is available, and consider whether, in light of the breadth and complexity of the required elements, your company has the resources to develop an alternative plan.
- Keep in mind, however, that existing protocols and policies may be of limited use in setting up an alternative plan because the Act requires employers that wish to develop an alternative plan to do so “with meaningful participation of employees.”
- If you are a unionized employer deciding whether to adopt the model standard or create an alternative plan, take into consideration the Act’s mandate to develop such a plan pursuant to an agreement with the collective bargaining representative as well as whether to attempt to negotiate a waiver with the unions representing your employees.
- Analyze an employer’s obligations under the Act and reconcile them with obligations and prohibitions under the NLRA in both unionized and non-union workplaces.
 As outlined in this Advisory, Governor Cuomo’s memorandum approving the HERO Act stated that he had secured an agreement with the New York Legislature to make technical changes to the Act. The specific changes contemplated in the memorandum are not yet available.
 The Act defines “work site” as “any physical space, including a vehicle, that has been designated as the location where work is performed. The term shall include employer-provided housing and employer-provided transportation at, to, or from the work site but shall not include the residence of the employer or employee unless such residence has been provided by the employer and is used as the primary place of work or such residence is provided by an employer covered under the provisions of article nineteen-A of this chapter [concerning farm workers]” (emphasis added).
 "Airborne infectious disease" means “any infectious viral, bacterial or fungal disease that is transmissible through the air in the form of aerosol particles or droplets and is designated a highly contagious communicable disease by the commissioner of health that presents a serious risk of harm to the public health.”