Read More

New York HERO Act: What Employers Need to Know

On May 5, 2021, New York State Governor Cuomo enacted the New York Health and Essential Rights Act (HERO Act) into law. The Act requires new workplace health and safety standards and is intended to prevent the spread of COVID-19 and other airborne diseases in the workplace.

While his signing statement promised amendments to correct various deficiencies in the Act, certain provisions take effect immediately and employers should begin creating or revising workplace safety policies to come into compliance.

There are two sections of the Act:

  • Section 1 requires all private employers, regardless of size, to implement an airborne infectious disease exposure prevention plan (“Safety Plan”). The NY Department of Labor (DOL) must issue industry-specific standards by June 4, 2021. Employers will not be required to establish their own prevention plan until the DOL issues its standards.
  • Section 2 takes effect on November 1, 2021 and requires employers with 10 or more employees to allow the formation of a joint management-employee workplace safety committee (“Safety Committee”). This covers all private employers who have 10 or more employees, regardless of where in the U.S. the 10 employees are located. So, if you have 2 employees in NY and 8 employees in other States an employer is required to comply. The Safety Committee must be allowed to raise workplace health and safety concerns, review employer workplace safety policies, participate in government site visits relating to workplace health and safety standards, and attend committee meetings and trainings related to workplace health and safety standards.

The Safety Plan is to cover any viral, bacterial, or fungal disease that is spread through the air in the form of aerosol particles or droplets, and that is designated by the New York State Department of Health (NYSDOH) as a highly contagious disease. The NYS DOL, working with the NYSDOH, will be developing a model safety plan for businesses by industry (similar to the Reopening NY plan) which employers can use or develop their own plan providing it covers all the necessary topics. Those topics include (1) employee health screenings, (2) face coverings, (3) personal protective equipment provided at the employer’s expense, (4) hand washing and breaks for hand washing, (5) cleaning shared equipment and other frequently touched surfaces, (6) social distancing, (7) quarantine orders, (8) engineering controls such as air flow and ventilation, (9) designated supervisor(s) to enforce safety standards, (10) compliance with notice requirements to employees and government officials, and (11) verbal review of safety standards, employer policies, and employee rights.

This Safety Plan will also need to be added to your Employee Handbook and will needed to be distributed to all NY employees and to all new hires when on-boarding.

There is a penalty for the Employer not to have a Safety Plan of $50/day until implemented and between $1,000-$10,000 for not adhering to the Safety Plan. Further, the Act bans retaliation against employees for exercising their rights under the Act. These provisions also take effect on June 4, 2021.

If employees request to have a Safety Committee, the Committee needs to be comprised of at least 2/3 non-supervisory employees. The non-supervisory safety committee members need to be selected by the employees themselves. Employers are responsible for training their employees on being part of this Safety Committee. The Safety Committee is expected to (1) raise health and safety concerns to the employer to which the employer must respond, (2) review the employer’s health and safety policy, (3) review the adoption of any policy in response to any health and safety law, (4) participate in any site visit by government health and safety officials, (5) review any report filed by the employer related to health and safety, and (6) attend quarterly meetings during work hours.

Action Steps:

  • Evaluate existing return-to-work plans based on the soon-to-be-released model Safety Plan. Employers can review the industry-specific “Reopening New York” guidance mentioned above to get a preview of what might be in the model Safety Plan.
  • NY State advises employers to plan on allocating a larger segment of their operating budget expenses to compliance, including costs of providing employees with PPE, cleaning and maintenance costs, installation of HVACs and other air filtration systems, etc.
  • Anticipate adding the Safety Plan to the employee handbook if you have a handbook, as previously mentioned.
  • Consider adopting a hybrid model of in-person and work-from-home to make compliance with requirements such as social distancing easier.
  • Review existing Employment Practices Liability Insurance policies to see whether they will cover claims by employees under the HERO Act.
  • Create a system for employees to select the members of the Safety Committee, should employees request a Safety Committee.
  • Be on the lookout for further regulations from the NYSDOL.