New York Passes New Workplace Safety Requirements

Smith, Gambrell & Russell, LLP

On May 5, 2021, New York Governor Andrew Cuomo signed into law the New York Health and Essential Rights Act (“HERO Act”) providing new workplace safety requirements on all employers in New York.  The HERO Act goes into effect on June 4, 2021.

The HERO Act requires the New York State Department of Labor to adopt industry-specific model airborne infectious disease exposure prevention standards (“Model Plan”) for all employers across the state.  This Model Plan will address exposure prevention of airborne infectious diseases and require, among other things:

  • health screenings;
  • appropriate social distancing measures and enforcement of isolation and quarantine orders;
  • face masks or other personal protective equipment;
  • cleaning and disinfecting requirements;
  • designation of one or more employees to enforce compliance with the model plan and any relevant federal, state or local laws;
  • verbal review, workplace posters and development of a personnel policy regarding the model plan; and
  • anti-retaliation requirements.

Once the New York Department of Labor publishes the industry-specific safety standards, employers must adopt compliant plans by November 1, 2021.  An employer may choose to adopt the Model Plan or choose to adopt their own version of the Model Plan, but it must contain the minimum standards adopted in the Model Plan and must be developed in conjunction with employees’ collective bargaining representative, if any, or with meaningful participation of employees in order to tailor the plan to the specific hazards in the specific industry and work sites of the employer.  The HERO Act defines “work sites” broadly to include any physical space that has been designated as the location where work is performed.  Employers must provide employees the plan in English and each employee’s stated primary language.  Moreover, the employer must provide the plan to employees on either November 1, 2021 or when the employer reopens after a period of closure due to airborne infectious disease and upon hiring.

In addition to the above requirements, the HERO Act also requires employers with more than 10 employees to create a joint management and employee workplace safety committee that will review health and safety issues, plans and policies; participate in government site visits; and otherwise evaluate and monitor workplace safety.

The HERO Act provides for civil penalties up to $10,000, potential civil action from the state labor commissioner, and creates a private right of action for employees to obtain injunctive relief, attorney’s fees and liquidated damages of up to $20,000 for safety violations.  The HERO Act does provide a “good faith” compliance defense.

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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