On May 5, Governor Cuomo signed into law the New York Health and Essential Rights Act, or NY HERO Act,1 which will require all workplaces to implement safety standards to prevent the further spread of coronavirus and other airborne diseases2 in the workplace and for certain employers to establish a joint labor-management workplace safety committee. The Governor’s approval was conditioned on a chapter amendment to the Act that provides employers with additional time to implement safety standards and an opportunity to correct violations of the standards prior to being subject to litigation.3 As a result, employers will be required to implement an airborne infectious disease exposure prevention plan within 30 days after the Commissioner of Labor publishes the general and industry-specific model safety standards.
While most employers in New York were required to implement a COVID-19 health and safety plan as part of operating as an essential business or reopening in accordance with New York Forward, the Act is notable in that it establishes enforceable minimum safety standards in the private sector and it will extend beyond the expiration of the state-declared COVID-19 public health emergency.
Employers and Work Sites
The Act applies to all employers in New York, regardless of size, except for state and governmental agency employers. The scope of the Act broadly covers employees, applying to 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.
The Act applies to all work sites, including vehicles, that have been designated as the location where work is performed over which an employer has the ability to exercise control. The chapter amendment clarifies that the Act does not apply to telecommuting or telework sites unless the employer has the ability to exercise control over such site.
Model Prevention Standards
The Act directs the Commissioner of Labor, in consultation with the New York State Department of Health, to develop and publish general model airborne infectious disease exposure prevention standards applicable to all work sites and standards for industries representing a significant portion of the workforce that have unique characteristics requiring distinct standards. The model standards will establish the minimum requirements for preventing exposure to airborne infectious diseases in the workplace.
The Commissioner is directed to establish requirements on procedures and methods for:
- Employee health screenings
- Face coverings
- Personal protective equipment (PPE), which shall be provided, used and maintained at the employer’s expense
- Accessible workplace hand hygiene stations and break times to use them
- Regular cleaning and disinfecting of shared equipment
- Effective social distancing
- Compliance with mandatory or precautionary orders of isolation
- Compliance with applicable engineering controls such as proper airflow, exhaust ventilation or other special design requirements
- Designation of one or more supervisory employees to enforce compliance with the plan and any other federal, state or local guidance related to avoidance of spreading an airborne infectious disease
- Compliance with any applicable laws, rules, regulations, standards or guidance on notification to employees and relevant state and local agencies of potential exposure to airborne infectious disease at the work site
- Verbal review of infectious disease standards, employer policies and employee rights
Under the Act, employers have the option to either adopt the Commissioner’s model airborne infectious disease exposure prevention standards or to create their own exposure prevention plan that meets or exceeds the minimum standards established by the Commissioner. If an employer chooses to establish its own exposure prevention plan, it must do so in consultation with collective bargaining representatives or, in a nonunionized workforce, with employee participation. In adopting the prevention plan, an employer may not assign responsibility for overseeing compliance with the plan to an employee who is not a supervisory employee.
Within 30 days of adopting their prevention plan, employers will be required to distribute the plan to all employees in both English and an employee’s primary language if other than English (provided there is a model policy developed in that specific language), and to all newly hired employees upon hiring. Employers will be required to redistribute the plan to all employees within 15 days of reopening after business closure due to an airborne infectious illness. Employers are required to post the prevention plan in a visible location within each work site, incorporate the plan into an employee handbook if the employer maintains a handbook, and make the prevention plan available upon request by an employee, an independent contractor, an employee representative, a collective bargaining representative, or commissioners of labor and health.
The Act prohibits discrimination and retaliation against employees, and employers are required to include anti-retaliation provisions within their adopted prevention plan. Employers cannot “discriminate, threaten, retaliate , or take any adverse action” against employees for (1) exercising their rights under the Act or the employer’s prevention 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 prevention plan exists, provided the employee notified the employer of the working conditions and the employer fails to cure the conditions or maintains inconsistent working conditions.
The Act authorizes the Commissioner to assess civil penalties in the amount of $50 per day for an employer’s failure to adopt a plan, and between $1,000 and $10,000 for failing to abide by their adopted prevention plan. The Act also permits employees to seek injunctive relief for violations of the employer’s adopted prevention plan and for the courts to award costs, including attorneys’ fees.4 The chapter amendment also authorizes courts to award to the employer costs and reasonable attorneys’ fees, assessed either against the employee or attorney for the employee, in the event the action brought by the employee is deemed frivolous.
Prior to any employee being authorized to bring an action under the Act, the employee must give the employer notice of the alleged violation and may not bring an action until 30 days after giving the employer notice of the alleged violation, unless the employer demonstrates an unwillingness to cure a violation in bad faith. An employee is not permitted to bring an action if the employer corrects the alleged violation.
Workplace Safety Committee
Applicable only to employers with ten or more employees, employers will be required to allow employees to establish and administer a joint labor-management workplace safety committee.5 Each committee would be composed of employee and employer designees, but at least two-thirds must be nonsupervisory employees, and selected by nonsupervisory employees.
The Act authorizes committees to (1) raise health and safety issues to employers to which the employer must respond, (2) review and comment on occupational safety and health policy, (3) review the adoption of any policy in the workplace in response to any health or safety law, (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 for no longer than two hours. Employers must permit safety committee designees to attend up to four hours of training with pay, and are not permitted to retaliate against employees involved in safety committees.
Pursuant to the changes included in the chapter amendment, the Act will go into effect on July 4, 2021. Following the publication of the general and industry-specific model safety standards by the Commissioner, employers will have thirty (30) days to either adopt the model prevention standards or to create their own exposure prevention plan that meets or exceeds the minimum standards established by the Commissioner. The requirement for employers to allow employees to establish a joint labor-management workplace safety committee will take effect on November 1, 2021.
1 Chapter 105 of the Laws of 2021.
2 “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 by the commissioner of health a highly contagious communicable disease that presents a serious risk of harm to the public health.
3 The chapter amendment, A7477 (Reyes)/S6768 (Gianaris), is expected to be passed by the Legislature prior to the end of the legislative session scheduled for June 10, 2021.
4 It is notable that the chapter amendment removed language that would have allowed courts to award employees payment of liquidated damages of up to $20,000.
5 If an employer has already established a workplace safety committee that is consistent with the requirements in the Act, the employer is exempt from creating an additional workplace safety committee to comply with the Act.