Cuomo Signs HERO Act into Law. NYS Employers Are Strongly Encouraged to Ensure Compliance.

Yesterday, May 6, 2021, Governor Cuomo signed into law the New York Health and Essential Rights, or HERO Act.  The HERO Act, which becomes effective on June 6, 2021, is considered by many to be landmark legislation because it amends the Labor Law by significantly changing and adding to the minimum workplace health and safety requirements imposed on New York businesses and forces businesses to create and implement airborne infectious disease exposure plans. Among other things, the HERO Act also directs New York State Department of Labor (NYSDOL) to create minimum workplace safety standards, requires all New York business to adopt airborne infectious disease exposure plans, and requires businesses to allow workers to establish and administer joint labor-management workplace safety committees.  Unlike federal workplace safety laws (like OSHA), the HERO Act gives employees a “private right of action,” giving them the ability to directly sue employers for violations.

Matt Miller our Labor & Employment practice leader is urging businesses to make compliance with the HERO Act a priority. As you read on to learn about all the required health and safety standards please reach out to our Labor & Employment team for any assistance in ensuring compliance.

NYS-Required Health and Safety Standards

The requirements in this portion of the HERO Act become effective 180 days after it was signed into law.

The NYSDOL is now required to create written, industry-specific model airborne infectious disease exposure prevention standards for all work sites that, at a minimum, sets requirements, procedures, and methods for:

  • Employee health screenings;
  • Face coverings;
  • Required and compliant PPE, at the employer’s expense, for each industry for the eyes, face, head, and extremities, as well as protective clothing, respiratory devices, and protective shields and barriers;
  • Accessible hand hygiene stations and adequate break time for employees to use them;
  • Cleaning and disinfecting of shared equipment and frequently touched surfaces (workstations, touchscreens, phones, handrails, doorknobs, and all surfaces and washable items in other high-risk areas like restrooms, dining areas/breakrooms, locker rooms, and vehicles);
  • Effective social distancing for employees and consumers or customers, including limiting capacity, reconfiguring spaces, flexible meeting and travel options, flexible work sites and hours, and remote or curbside pick-up services;
  • Compliance with mandatory or precautionary orders of isolation or quarantine;
  • Compliance with applicable engineering controls (proper air flow, exhaust ventilation, etc . . .);
  • Designation of one or more supervisory employees to enforce compliance with the airborne infectious disease exposure prevention plan and any other federal, state, or local guidance related to avoidance of spreading an airborne infectious disease (non-supervisory employees are not allowed to bear this responsibility);
  • Compliance with all 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; and
  • Verbal review of infectious disease standards, employer policies, and employee rights under the HERO Act.

Written Airborne Infectious Disease Exposure Plans

All New York employers (regardless of size, industry, or location) must establish a written airborne infectious disease exposure plan by either adopting the NYSDOL’s model standards once they are released or by establishing an alternative plan that meets or exceeds the state’s standards.  Employers beware: if you are going to adopt an alternative plan for your business, your plan must be developed with “meaningful participation” from employees.  Whatever plan you adopt, it must be (1) provided to all current employees and to new employees at the time of hiring, (2) posted in a visible and prominent location, (3) included in your employee handbook, and (4) made available, upon request, to all employees, independent contractors, or employee or collective bargaining representatives.

Creation of Joint Labor-Management Committees

Haven’t heard enough?  Well, there’s more.  The HERO Act allows employees to create and administer joint labor-management workplace safety committees (as long as at least two-thirds of the committee is made up of non-supervisory employees that are selected by, and from among, non-supervisory employees without interference from the employer).  All committee members must be allowed to, among other things:

  • Raise health and safety concerns, hazards, complaints, and violations to the business (to which the business must respond);
  • Review any workplace policy or plan that is put in place because of the HERO Act or New York’s Workers’ Compensation Law, or in response to any health or safety law, ordinance, rule, regulation, executive order, or other directive;
  • Participate in any site visit by any governmental entity responsible for enforcing safety and health standards
  • Review any report filed by your business relating to the health and safety of the workplace;
  • Regularly schedule meetings during work hours (at least once per quarter); and
  • Attend a training – without losing pay – concerning the function of worker safety committees, employee rights established by the HERO Act, and an introduction to occupational safety and health.

More Anti-Retaliation Provisions

As you might expect, the HERO Act includes sweeping anti-retaliation provisions that prohibit  discrimination, threats, retaliation, or adverse actions against employees for:

  • Exercising their rights under the HERO Act or your adopted airborne infectious disease exposure prevention plan;
  • Reporting violations of the HERO Act or your plan;
  • Reporting an airborne infectious disease exposure concern; and/or
  • Refusing to work when the employee reasonably believes, in good faith, that working exposes him or her to an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with the laws, rules, policies, or orders of any governmental entity, including but not limited to the NYSDOL’s model standards, provided that the employer was knew or should have known (i.e. was notified) of the conditions and failed to cure them.

What Can Happen If There’s a Violation?

Be careful!  There are significant potential remedies available to both New York State and employees for violations of the HERO Act.

  • NYSDOL Penalties:  If you neglect or refuse to adopt a written airborne infectious disease exposure plan, the business will be subject to civil penalties of at least $50 per day until a plan is put in place.  That can mount quickly.  If you adopt a plan, but then do not comply with it, the business can be hit with penalties from the NYSDOL of anywhere from $1,000-10,000.  Further – and this is big – if the NYSDOL determines that you violated the HERO Act within the preceding six years the penalties can increase to $200 per day for failing to adopt a plan and between $1,000-20,000 for not complying with an adopted plan.  In other words, do not be a repeat offender!
  • Employee Remedies: The HERO Act creates a private right of action in favor of employees.  In other words, employees can sue the business for violations of the HERO Act, seeking injunctive relief (preventing further violations) and other relief including all his or her costs, attorneys’ fees, and liquidated damages of up to $25,000.

As business owners, we empathize with the added pressure this can feel like, but as Labor & Employment attorneys we urge you to make compliance with the HERO Act a priority for your leadership team. If you have any confusion or concerns on how this relates specifically to your business please reach out to Labor & Employment.