New York’s newly enacted Health and Essential Rights Act (NY HERO Act) will require employers to protect workers from airborne pathogens in the workplace. Compliance will involve investments of time and money to implement the safety policies which will be articulated by the New York State Department of Labor (NYSDOL). Governor Andrew Cuomo’s signing of the law on May 5 was contingent on an agreement with the New York State Legislature to enact employer-friendly changes, including a cure period for alleged violations and a clear timeline for implementation. The proposed amendment was introduced on May 10, and was passed by the New York State Senate and Assembly. Non-compliance may result in civil fines, lawsuits by employees, and the award of attorneys’ fees and further sanctions.

Section One of the HERO Act requires all employers to adopt an “Airborne Infectious Disease Exposure Prevention Standard.” Employers may either implement or supplement the model standards relevant to their industry, which have yet to be published by the NYSDOL. Policies must include several specific requirements concerning airborne infectious disease mitigation measures, many of which will be familiar to employers from experience during the pandemic:

• employee health screenings;
• face coverings;
• other personal protective equipment;
• regular hand washing;
• surface disinfecting;
• social distancing;
• quarantining; and
• HVAC system modification.

Among other mandates, employers must assign specific supervisors to ensure compliance, and, where the employer adopts its own policy instead of the state’s model, must solicit employee feedback and/or collectively bargain the terms of the policy.

Employers may not discriminate or retaliate against employees who report violations of an employer policy or the HERO Act, or who refuse to work if they reasonably believe conditions put them at risk of infectious disease. Employees may sue their employers for violations of the HERO Act and recover their attorneys’ fees if they are successful. Non-compliant employers also may face fines from the NYSDOL or lawsuits from the Attorney General. The proposed amendment, which was introduced on May 10, would allow employers to recover their attorneys’ fees and costs if an employee’s lawsuit is frivolous. It also would require employees to provide their employer with notice of any alleged violations, after which the employer would have 30 days to cure before a lawsuit can be filed. However, an employee can avoid this requirement if they allege with particularity facts showing that “the employer has demonstrated an unwillingness to cure a violation in bad faith.” Finally, the amendment would require employees to file suit within six months of their knowledge of an alleged violation or be forever barred from bringing those claims.

The above provisions from Section One of the HERO Act are set to become effective June 4. If, as expected, the proposed amendment becomes law, that date would be moved to July 4. The proposed amendment also provides employers with 30 days following the NYSDOL’s issuance of model policies to adopt them or implement the business’s own plan. While the exact timeline for enforceability remains uncertain, employers should begin to consider what COVID-era policies are worth keeping, and what new policies will need to be adopted to ensure HERO Act compliance.

Section Two of the HERO Act requires employers with 10 or more employees to permit workers to establish a “Joint Labor Management Workplace Safety Committee.” The committees are meant to give employees ownership of their workplace safety procedures. Committees should be populated by rank-and-file employees, and must be allowed to raise health and safety concerns, review health and safety policies, and participate in workplace visits by regulators, among other things. Section 2 will not become effective until November 1, 2021. The proposed amendment would clarify that employers with existing conforming workplace safety committees do not need to establish an additional group, and need not allow more than one group per worksite.

The HERO Act will impose new requirements on New York employers. While the bulk of the law will soon be in effect, the substance and timing of compliance is largely dependent on yet-to-be-issued model policies and anticipated amendments to the Act.