Holding Out for a HERO: New York Issues Much-Awaited Model Standard for Mandatory Employer Plans to Prevent Airborne Disease Exposure

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SUMMARY

The New York Department of Labor (“NYDOL”) has issued an important model standard and model templates/plans that can be adopted by employers to comply with their new obligations under the New York Health and Essential Rights Act, as amended (“HERO Act” or “Act”). By August 5, 2021, all private employers with a “work site” in New York state must adopt an airborne infectious disease exposure prevention plan (“Exposure Prevention Plan” or “Plan”) that meets minimum standards set forth by the NYDOL. Employers may do so by adopting the model template/plan applicable to the employer’s industry or by developing their own Plan that meets the requirements of the Act’s model standard. The Plans are not required to be in effect until an airborne infectious disease is designated by the New York Commissioner of Health (“Health Commissioner”) as a serious public health risk. Such a designation is currently not in effect. Further, as provided in the HERO Act, effective as of November 1, 2021, employers with at least 10 employees in New York state must also permit their employees to create joint labor-management workplace safety committees (“Safety Committees” or “Committees”) to work with employers to address health and safety concerns. A discussion of these and other requirements under the HERO Act follow, along with recommended action items for employers.

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BACKGROUND

The HERO Act, signed by Governor Cuomo on May 5, 2021, with amendments signed on June 11, 2021, created two new obligations for New York employers: (i) to adopt, distribute and implement (when required) an Exposure Prevention Plan (“Plan Requirement”) that meets minimum standards issued by the NYDOL, and (ii) to permit employees to create Safety Committees (“Safety Committee Provision”).

THE MODEL STANDARD AND MODEL PLANS

On July 6, 2021, the NYDOL, in consultation with the New York Department of Health (“NYDOH”), issued: (i) the NY HERO Act Airborne Infectious Disease Exposure Prevention Standard (“Model Standard”); (ii) the NY HERO Act Model Airborne Infectious Disease Exposure Prevention Plan (“General Model Plan”); and (iii) industry-specific model plans for eleven industries: Agriculture, Construction, Delivery Services, Domestic Workers, Emergency Response, Food Services, Manufacturing and Industry, Personal Services, Private Education, Private Transportation and Retail (“Industry Model Plans”, together with the General Model Plan, the “Model Plans”).

The Model Standard sets forth the minimum standards required of a Plan under the HERO Act, i.e., the minimum exposure controls required to address exposure risks associated with the employer’s work site(s). The following controls must be included: daily health screenings, compliance with CDC/NYDOH protocols for testing and isolation, face coverings, physical distancing, hand hygiene facilities, cleaning and disinfection, and personal protective equipment if required or recommended by the NYDOH. Employers may comply with these minimum requirements by adopting the Model Plan appropriate for their industry or developing their own plan (“Alternative Plan”) that meets such requirements. Office-based employers, and other employers in an industry without a specific Industry Model Plan, should adopt or refer to the General Model Plan.

PLAN REQUIREMENT

  • Which Employers and Work Sites Are Covered by the Plan Requirement? All private employers with at least one “employee” in a “work site” in New York state are required to adopt a Plan. A “work site” is defined as “any physical space, including a vehicle, that has been designated as the location where work is performed over which an employer has the ability to exercise control” and specifically excludes “a telecommuting or telework site unless the employer has the ability to exercise control of such site.”
  • Who is an “Employee” for Purposes of the Plan Requirement? Notably, the HERO Act has two different definitions of “employees.” For purposes of the Plan Requirement, an “employee” is defined broadly and includes independent contractors and part-time, temporary and seasonal workers. The term also includes individuals working for digital applications or platforms and staffing agencies and individuals “delivering goods or transporting people at, to or from the work site on behalf of the employer.” The Model Standard excludes from its coverage any employee covered by a temporary or permanent standard adopted by the federal Occupational Safety and Health Administration regarding COVID-19 and/or airborne infectious agents and diseases.
  • Is the Plan Requirement Limited to the COVID-19 Pandemic? No, the Model Standard and Model Plans apply to any “airborne infectious disease” that is designated as a serious public health risk.
  • What Are the Minimum Requirements for An Employer’s Own Alternative Plan? Importantly, an Alternative Plan must be developed with the meaningful participation of employees for all aspects of the Plan (or pursuant to an agreement with the collective bargaining representative, if any). An Alternative Plan must be tailored to the employer’s industry and work sites and must provide the minimum controls required in the Model Standard. Employers must also consider and incorporate controls in any applicable Industry Model Plan.
  • What is an Employer’s Obligation for Updating and Distributing its Plan? Employers must distribute their Plan to employees within 30 days after the employer adopts its Plan, 15 days following reopening after a period of closure and upon the hire of any new employee. For businesses permitted to operate as of July 5, 2021 (the effective date of the HERO Act’s Plan Requirement), the adopted Plan must be distributed by September 4, 2021. The Plan must be provided in English, as well as in the language identified by each employee as their primary language if the Model Plan is provided by the NYDOL in such language. The Plan must also be posted in a visible and prominent location within the work site, other than a vehicle. If an employer provides an employee handbook, the Plan must be included in its handbook. The Plan must be updated as needed to reflect changes to the worksite and be provided upon request to all employees, independent contractors, employee representatives, collective bargaining representatives, the Health Commissioner, and the Commissioner of the NYDOL (“Labor Commissioner”).
  • What is an Employer’s Obligation to “Implement” its Plan? When an outbreak is designated by the Health Commissioner, employers must: immediately review their Plan; update it to incorporate the most current information and government guidance; “activate” the elements of the Plan; provide a verbal review to employees of its Plan, policies and employee rights under the HERO Act; and designate supervisory employees to enforce compliance. Employers must distribute the updated Plan to each employee, post a copy at the work site (other than a vehicle), maintain the controls, monitor government guidance, and update the Plan as needed.
  • What Do the Model Plans Contain? The Model Plans are 8- to 9-page templates with highlighted sections to be customized by each employer, including with names of the supervisory employees responsible for implementing the Plan and acting as designated contacts. The Industry Model Plans follow the same general outline of the General Model Plan, with variations applicable to each industry. The General Model Plan lists: (i) mandatory Minimum Controls (e.g., face coverings, daily health screenings, physical distancing, cleaning and disinfection, special accommodations for those with added risk factors, and protocols for isolating symptomatic employees), and (ii) Advanced Controls to be used if Minimum Controls are insufficient (e.g., elimination of risky activities, engineering controls to improve ventilation, and administrative controls to provide for staggered shifts and modified work tasks). The Model Plans also provide for training during an outbreak and notifying impacted individuals in the event of an actual or suspected case at work.
  • What Are the Anti-Retaliation Prohibitions Under the Plan Requirement? Employers may not threaten, discriminate, retaliate against or take adverse action against any employee for exercising their rights or reporting any violations or concerns to the employer or any government entity, or for refusing to work where such employee reasonably believes, in good faith, that work conditions inconsistent with law or government policies or orders expose the employee or others to an unreasonable risk, provided that the employer was notified of and failed to cure such inconsistent working conditions, or the employer knew or should have known about, and maintained, such inconsistent working conditions.

SAFETY COMMITTEE PROVISION

In addition to the Plan Requirement, effective as of November 1, 2021, the HERO Act requires certain employers to permit the creation of Safety Committees.

  • Which Employers and “Employees” Are Covered by the Safety Committee Provision? This provision applies only to private employers with at least ten employees in New York state. For purposes of the Safety Committee Provision, an “employee” is defined to “include all employees in the state” and does not include independent contractors.
  • Are Safety Committees Required? No, but employers must permit employees to establish a Committee if employees wish to do so.
  • What Are the Rules Governing the Establishment of Safety Committees? Committees must be composed of (and co-chaired by) both employee and employer designees, of which at least two-thirds must be selected by, and from among, non-supervisory employees. If a collective bargaining agreement is in place, the collective bargaining representative is responsible for selecting members.
  • What are Safety Committees Authorized to Do? Activities include:
    • Raising health and safety concerns to which the employer must respond;
    • Reviewing any workplace policy adopted in response to a health or safety law or directive;
    • Participating in any site visit by a governmental entity responsible for health and safety (unless otherwise prohibited by law);
    • Scheduling meetings during work hours at least quarterly lasting no longer than two hours; and
    • Attending training lasting no longer than four hours, without loss of pay, on the function of workplace safety committees, rights established under the Safety Committee Provisions of the HERO Act and an introduction to occupational safety and health.
  • What Are the Anti-Retaliation Provisions With Respect to Safety Committees? Employers may not retaliate against any employee for participating in the activities or establishment of Committees.
  • How is the HERO Act enforced? Failure to comply with the HERO Act may subject employers to:
    • Civil fines of $50 per day for failing to adopt a Plan ($200 per day for a repeat offense);
    • Civil fines of $1,000-$10,000 for failing to abide by a Plan (up to $20,000 for a repeat offense);
    • Civil actions for injunctive relief, costs and attorneys’ fees, for violations of a Plan that create a “substantial probability that death or serious physical harm could result to the employee,” provided the employer has been given notice and an opportunity to cure;
    • Civil fines of $1,000-$10,000 for violating the HERO Act’s anti-retaliation provisions (up to $20,000 for a repeat offense), plus liquidated damages of up to $20,000 per employee;
    • Civil actions for lost wages/damages, costs and attorneys’ fees for violations of the HERO Act’s anti-retaliation provisions, plus liquidated damages of up to $20,000 per employee; and
    • Enforcement actions by the Labor Commissioner or the New York Attorney General.

EMPLOYER ACTION ITEMS

  1. By August 5, 2021, all New York employers with a New York “work site” should:
    • Adopt the Model Plan for their industry or develop an Alternative Plan;
    • Distribute the Plan to all “employees” within 30 days after adopting its Plan, within 15 days following reopening after a period of closure and upon any new hire (for businesses permitted to operate as of July 5, 2021, the Plan must be distributed by September 4, 2021);
    • Post the Plan in a visible and prominent location at the work site;
    • Include the Plan in an employee handbook (if the employer issues a handbook); and
    • Update the Plan as needed to reflect changes to the worksite and be prepared to immediately review, update and implement the Plan upon the designation of an outbreak as a serious public health risk by the Health Commissioner.
  2. Effective as of November 1, 2021, all employers with at least 10 employees in New York state must permit employees to establish Safety Committees if employees wish to do so.

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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