New York HERO Act Goes Far Beyond COVID

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On May 5, 2021, New York Governor Andrew Cuomo signed new State laws regulating workplace safety, known as (though not formally entitled) the Health and Essential Rights (HERO) Act. The HERO Act requires employers to implement safety plans and permits employees to form workplace safety committees. The Act only applies to private (i.e., non-government) businesses and organizations.

In approving this legislation, Governor Cuomo issued a memorandum indicating that “technical” amendments will be forthcoming. This wrinkle complicates forecasting when the new requirements will ultimately take effect.

Airborne Infectious Disease Exposure Prevention

A new section 218-b of the New York Labor Law will impose new requirements regarding “prevention of occupational exposure to an airborne infectious disease.”

Airborne Infectious Disease

This term is defined to mean “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.”

Covered Employees

The HERO Act is unusually expansive in its definition of “employee”. The term broadly includes “any person providing labor or services for remuneration for a private entity or business within the state.” Beyond workers with a direct employment relationship, it expressly includes:

  • independent contractors;
  • individuals working for staffing agencies, contractors, or subcontractors on behalf of the employer at any individual work site; and
  • any individual delivering goods or transporting people at, to, or from the worksite on behalf of the employer.

Worksites

Likewise, the term “worksite” is relatively broad in scope. It is defined as “any physical space, including a vehicle, that has been designated as the location where work is performed”. This definition includes employer-provided housing and transportation, but does not include an employee’s residence (unless provided by the employer).

Supervisors

The HERO Act defines supervisors as “any person who has the authority to direct and control the work performance of other employees, or who has the managerial authority to take corrective action regarding the violation of the law, rules or regulations.” Any employee who is a member of a bargaining unit that primarily represents non-supervisory employees does not qualify as a supervisor under the Act.

Forthcoming Standards

The law requires the New York Department of Labor to publish industry-specific model airborne infectious disease exposure prevention standards. These will establish minimum requirements that employers must meet.

In addition to whatever else the DOL, in consultation with the NYS Department of Health, mandates, the standards must address:

  • Employee health screenings.
  • Face coverings.
  • Personal protective equipment (PPE) for eyes, face, head, and extremities.
  • Protective clothing.
  • Respiratory devices.
  • Protective shields and barriers.
  • Accessible workplace hand hygiene stations.
  • Regular cleaning and disinfecting of shared equipment and frequently touched surfaces and all surfaces and washable items in other high-risk areas.
  • Social distancing for employees, consumers, and customers.
  • Compliance isolation and quarantine orders.
  • Engineering controls, such as airflow and exhaust ventilation.
  • Designation of a supervisory employee to enforce compliance. (“Non-supervisory line employees shall not bear responsibility for overseeing compliance with the requirements of the model policy.”)
  • Compliance with applicable laws or guidance on notification of potential exposure to airborne infections disease at the worksite.
  • Verbal review of the infectious disease standard, employer policies, and employee rights under the HERO Act with employees.
  • Anti-retaliation protections.

Once the model airborne infectious disease exposure plans are available from the State, employers must either adopt the applicable model plan or establish an alternative plan that meets or exceeds the minimum standards included in the model standards.

In unionized companies, the employer may only adopt an alternative to the model plan if the union agrees. Moreover, even where there is no union representing employees, the employer can only implement an alternative plan “with meaningful participation of employees.”

Once adopted, employers must provide their plans in writing to all employees. The plan must also be posted “in a visible and prominent location within the worksite.” If the employer has an employee handbook, it must also include the plan there.

Retaliation Prohibitions

The HERO Act prohibits employers and their agents from taking adverse action against an employee for:

  • Exercising their rights under the law or applicable infectious disease exposure prevention plan.
  • Reporting violations of the law or plan.
  • Reporting an airborne infectious disease exposure concern.
  • Refusing to work based on a good faith belief of an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with laws or other government orders, despite notice to the employer of the inconstant working conditions that the employer failed to address.

Penalties for Violations

The DOH may assess a civil fine upon any entity or person who violates the HERO Act. The penalty is at least $50 per day for not adopting an airborne infectious disease exposure plan and between $1,000 and $10,000 for failure to abide by an adopted plan. These penalties rise to at least $200 per day and $1,000-$20,000, respectively, for repeat violations.

In addition, any employee may sue an employer for any violation of an airborne infectious disease exposure plan that allegedly “creates a substantial probability that death or serious physical harm could result”. Employees may receive “all appropriate relief,” including reimbursement of attorneys’ fees and liquidated damages of up to $20,000.

In his approval memorandum, Governor Cuomo cautioned that amendments to the enforcement procedures are necessary. He wants to “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.”

Workplace Safety Committees

In addition to the airborne infectious disease plan requirements, a new section 27-d of the NY Labor Law permits employees to organize workplace safety committees that employers (with at least 10 employees) must recognize and deal with to address any safety and health issues. These issues are by no means limited to airborne infectious disease prevention.

Note that the workplace safety committee provisions are in a separate statutory section from the airborne infectious disease exposure plan requirements. As a result, some terms are defined differently between the two components. For example, independent contractors do not appear to be “employees” who qualify to be committee members.

Committee Structure

The law requires that these workplace safety committees must include both employer and employee representatives. At least two-thirds of the members must be non-supervisory employees. One “employee” representative and one “employer” representative must co-chair the committee.

More than one committee may exist to represent “geographically distinct work-sites.”

Committee Activities

Workplace safety committees may do all of the following:

  • Raise health and safety concerns, hazards, complaints, and violations to which the employer must respond.
  • Review any policy put in place in the workplace required by the NY Labor Law or the Workers’ Compensation Law and provide feedback to such policy.
  • Review the adoption of any policy in the workplace in response to any health or safety law, ordinance, rule, regulation, executive order, or other related directive.
  • Participate in any site visit by any governmental entity responsible for enforcing safety and health standards.
  • Review any report filed by the employer related to the health and safety of the workplace.
  • Regularly schedule a meeting during work hours at least once a quarter.

In addition to paid quarterly meetings, employers must allow “safety committee designees” to attend a training on “the function of workers safety committees, rights established under [§ 27-d], and an introduction to occupational safety and health,” “without a loss of pay.”

Employers may not retaliate against employees for their participation in the activities of a workplace safety commission.

Collective Bargaining Waiver

Companies with unionized employees may negotiate out of the workplace safety committee requirements in their collective bargaining agreements. However, any such waiver must specifically reference NY Labor Law § 27-d.

When Must Companies Act?

No aspect of the HERO Act took effect immediately.

The airborne infectious disease exposure plan requirements could take effect in as little as 30 days, which would be June 4, 2021. However, employers won’t have to adopt these plans until the Department of Labor sets the minimum standards and issues the industry-specific models.

The workplace safety commission provisions are not scheduled to take effect for six months, on November 1, 2021.

Either of these effective dates could change based on the statutory amendments Governor Cuomo requested.

For now, New York businesses are already subject to COVID-19 safety requirements along the lines of what the HERO Act will require to be addressed in permanent airborne infectious disease safety plans. This new law primarily mandates that employers remain prepared to avoid and/or deal with future pandemics.

The more dramatic impact of the HERO Act will likely be the creation of workplace safety committees. This development essentially imposes an ongoing “union-like” bargaining obligation for New York companies with at least 10 employees. Among the unanswered question is whether even a single employee’s request is sufficient to mandate the creation of a safety committee.

The Department of Labor will be busy coming up with standards and regulations regarding many aspects of these new laws. Employers must remain alert to future developments to prepare for implementation and ensure ongoing compliance.

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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