Headlines & Deadlines: NY HERO ACT TO THE RESCUE?

What the Law Means for Employers and Worksites

By Glen P. Doherty, Esq.
Hodgson Russ LLP

On May 5, 2021, Governor Cuomo signed into law the New York Health and Essential Rights Act (HERO Act), which adds two new sections to the New York Labor Law: section 218-b, which addresses the “Prevention of Occupational Exposure to an Airborne Infectious Disease” and went into effect on June 4, 2021; and section 27-d, which addresses “Workplace Safety Committees” and goes into effect November 1, 2021.

On June 14, 2021, Governor Cuomo signed various amendments to the HERO Act, and these amendments enact a number of pro-employer changes to the act.

Section 218-b: Prevention of Occupational Exposure to an Airborne Infectious Disease

The HERO Act requires the New York Department of Labor (DOL) to create and publish model airborne infectious disease exposure prevention standards for all worksites, differentiated by industry. Notably, these standards will be targeted towards preventing any airborne infectious disease and are not strictly limited to COVID-19.

In preparing the model standards, DOL must “explicitly specify and distinguish the extent to which the provisions are applicable for different levels of airborne infectious disease exposure, and … take into account whether a state of emergency has been declared.” At a minimum, DOL’s model plan must establish procedures and methods for the following: employee health screenings; face coverings; required personal protective equipment; accessible workplace hand hygiene stations; regular cleaning and disinfecting of shared equipment; effective social distancing measures; compliance with mandatory or precautionary orders of isolation or quarantine; designation of one or more supervisory employees to enforce compliance with the plan; compliance with any applicable laws, rules, regulations, standards, or guidance; and verbal review of infectious disease standards, employer policies, and employee rights.

All private sector employers must establish an airborne infectious disease exposure prevention plan, either by adopting the model plan published by DOL for their industry or by establishing an alternative plan that equals or exceeds the minimum standards provided by the model plan standard. Additionally, if an employer chooses not to adopt the model plan, it must develop its plan pursuant to an agreement with the relevant union or, if there is no relevant union, with “meaningful participation of employees … for all aspects of the plan.”

Once adopted, each employer must post its plan in a visible and prominent location within the worksite and include the plan within any handbook it provides to employees. Employers must also distribute a written copy of the plan to each employee, in English as well as the employee’s primary language if other than English. Under the initial HERO Act, this was required to be done by June 4, 2021. Under the amendments, this date was extended from June 4, 2021 to 30 days after DOL publishes the model plans, meaning all employers were to have a plan in place by August 5.

Since DOL published the model plans on July 6, employers had 30 days to adopt their plans and then have another 30 days to distribute the plans to employees. Employers will also be required to distribute their plans to newly hired employees at the time of hire and to all employees within 15 days after reopening following a period of closure due to airborne infectious disease.

Under the amendments, the worksites DOL was required to publish model plan(s), and for which employers must adopt plan(s), are now explicitly limited to those “over which an employer has the ability to exercise control.” The amendments also clarify that covered worksites do not include telecommuting or telework sites over which the employer lacks the ability to exercise control or vehicles.

Section 218-b also prohibits employers from taking adverse action against any employee for a number of specific circumstances. Employees are protected from adverse action for: exercising their rights under, or reporting violations of, Section 218-b or the applicable airborne infectious disease exposure prevention plan; reporting an airborne infectious disease exposure concern to any state, local, or federal government entity, public officer, or elected official; or refusing to work where such employee reasonably believes, in good faith, that the work exposes him or her to an unreasonable risk of exposure to an airborne infectious disease due to the working conditions that are inconsistent with Section 218-b or the applicable airborne infectious disease exposure prevention plan, provided that the employer knew or should have known of such working conditions and failed to cure the issue.

DOL may assess penalties on any employer that violates the act: (a) at least $50 per day for failing to adopt a compliant plan; and (b) a fine of $1,000 to $10,000 for failing to comply with the plan. Employees may also bring a civil action against their employer for violations of Section 218-b. In addition to an order requiring an employer to comply with Section 218-b, a prevailing employee claim may recover his or her reasonable attorney’s fees. The initial HERO Act authorized liquidated damages of up to $20,000, but the amendments eliminated the remedy of liquidated damages.

The amendments also require employees to provide their employer with 30 days’ notice and an opportunity to cure the violation before filing a civil action under Section 218-b, unless the “employee alleges with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith.” Employees must file a civil action within six months of the date the employee had knowledge of the violation. Employees who file civil actions that are found by the court to be frivolous may be ordered to pay the costs and reasonable attorney’s fees incurred by the employer in the defense of the action.

Notably, Section 218-b defines the term “employee” to include independent contractors. This means that independent contractors must also receive a copy of the employer’s airborne infectious disease exposure prevention plan and are protected by the law’s anti-retaliation rules and enforcement remedies.

Section 27-d: Workplace Safety Committees

The HERO Act also requires that private employers with 10 or more employees allow employees to form joint labor-management workplace safety committees. These committees must be composed of both employees and employer designees, though at least two-thirds must be non-supervisory employees. The non-supervisory members must be selected by the relevant union or, if there is no union, by the employer’s non-supervisory employees. Employers are prohibited from “interfering with the selection of employees [to] serve on such committees.”

Under the amendments, the purview of workplace safety committees has been narrowed to more closely target issues related to workplace safety. The HERO Act originally allowed workplace safety committees to, among other identified tasks, “[r]eview any policy put into place in the workplace required by any provision of this chapter,” which could have been read to extend to any policy required by the New York Labor Law. That provision has now been modified to include only policies “put into place in the workplace required by any provision of this chapter relating to occupational safety and health.” The other tasks that workplace safety committees are entitled to undertake remain largely unchanged. The amendments do, however, clarify that employers are only required to permit one committee per worksite and do not need to allow another committee where one already exists.

The duration of workplace safety committee meetings and trainings has also been limited under the amendments. Specifically, the amendments specify that the regularly scheduled quarterly meetings of the committee “shall last no longer than two hours.” These meetings still must occur during work hours. In addition, the training that safety committee members are entitled to attend, without loss of pay, has been limited to a duration of no more than four hours.

Although New York employers now have a bit more breathing room under the HERO Act, it is clearly time to ensure your company is set for compliance with both the adoption of a prevention plan for airborne infectious diseases and the formation of a workplace safety committee. For more information on how to prepare, click here.

Glen Doherty is a partner at Hodgson Russ LLP. Glen can be reached at gdoherty@hodgsonruss.com.

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