Update: On September 6, 2021, New York Governor Kathy Hochul designated COVID-19 as a disease to be covered by the NY HERO Act. McDermott has provided updated guidance, available here.
On May 5, 2021, New York Governor Andrew Cuomo signed into law the New York Health and Essential Rights (HERO) Act, which imposes stringent new workplace safety requirements for all employers in New York. The law is expected to take effect on June 4, 2021.
The HERO Act requires the New York Commissioners of Labor and Health to create a model airborne infectious disease exposure prevention standard (“Model Plan”) for all employers across the state, differentiated by industry. The Model Plan will include requirements for, among other things:
Employee health screenings;
Required personal protective equipment;
Cleaning and disinfecting requirements;
Appropriate social distancing measures;
Compliance with quarantine orders or precautionary orders of isolation;
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
Employers can adopt their own policy but it (1) must meet the minimum standards of the Model Plan, and (2) must be developed in conjunction with the employees’ collective-bargaining representative; or, if not applicable, then with “meaningful participation” of employees. The HERO Act provides no guidance on what “meaningful participation” requires.
The law includes a laundry list of areas that constitute a “workplace” for purposes of determining whether a safety plan is required. This list includes typical areas, like warehouses and office spaces; but for employees who work in roles such as rideshare drivers, it can include vehicles, and for domestic employees, it can include the employer’s own home.
Employers may not discriminate, threaten, retaliate against or take any adverse action against any employee for:
Exercising their rights under the HERO Act or under an employer’s workplace safety plan (i.e., by participating in the activities or creation of a workplace safety committee, detailed below);
Reporting violations of the HERO Act or the applicable workplace safety plan;
Reporting a concern of exposure to an airborne infectious disease or seeking help or intervention regarding any such concern, whether to their employer or to a governmental authority; or
Refusing to work where the employee reasonably believes, in good faith, that such work exposes the employee, other workers or the public, to an unreasonable risk of exposure to an airborne infectious disease due to working conditions that are inconsistent with the laws, rules or policies of any government entity or the applicable workplace health and safety plan.
LABOR-MANAGEMENT WORKPLACE SAFETY COMMITTEE
Employers with at least 10 employees must permit employees to establish a joint labor-management workplace safety committee, with at least two-thirds of the committee comprised of non-supervisory employees. Employee members must be selected by non-supervisory employees (or, if a union is in place, the union will select employee representatives).
Committee members must be permitted to regularly schedule meetings during work hours, at least once a quarter, and to attend a training (without loss of pay) on the function of safety committees and an introduction on occupational safety and health.
PENALTIES FOR NON-COMPLIANCE
The HERO Act creates a private right of action for employees alleging violations of the plan “in a manner that creates a substantial probability that death or serious physical harm could result” unless the employer did not know, and could not reasonably have known, about the violation. Employers may proffer a good-faith compliance defense.
If an employer is found to have violated the statute, the penalty is a civil fine of at least $50 per day for failure to adopt a safety plan, or at least $200 per day if the employer has already committed this violation at least once in the last six years. In addition, employers may be fined anywhere from $1,000 to $10,000 for failure to abide by an adopted plan, or up to $20,000 if the employer has already committed this violation at least once in the last six years.
Gov. Cuomo’s signing of the HERO Act came with the caveat that it would be amended to give employers a cure period for alleged violations so that penalties will capture only bad-faith employers and will not embroil well-intentioned actors in lengthy litigation. There is no language (yet) for this proposed amendment, but the state legislature is expected to address it in the coming days.
The HERO Act comes at a time when the entire country awaits publication of the much-anticipated workplace safety standards to be published by the Occupational Safety and Health Administration (OSHA), and shortly after OSHA published its guidance for employers considering whether to recommend or require employee vaccinations.
HOW EMPLOYERS SHOULD PREPARE
We anticipate that the Model Plan may follow many of the same requirements that New York State mandated in 2020 for employers’ return-to-work policies during the pandemic. Employers should be prepared to update their New York-compliant return-to-work policies that are already in place.
Employers should also prepare to disseminate their new workplace safety plans once ready and provide supervisors with compliance and anti-retaliation training.
Employers with at least 10 employees should prepare to establish, or permit the establishment of, a labor-management workplace safety committee.
We can help you tailor pre-existing policies to the Model Plan’s requirements once published, in addition to any applicable OSHA requirements and state and local reopening guidelines. We are available to answer any of your questions related to the HERO Act.