New York's HERO Act Enacts New Workplace Health and Safety Obligations on Employers

While Memorial Day weekend might offer a long-awaited reprieve for many New Yorkers, employers must return prepared for another round of COVID-fueled requirements. Earlier this month, Gov. Andrew Cuomo signed legislation coined as the New York Health and Essential Rights (HERO) Act. Aiming to address airborne infectious diseases in addition to COVID-19, the HERO Act places significant requirements on New York employers and takes effect over two phases.

The first wave of mandated changes (New York Labor Law § 218-b) will take effect on June 4, 2021, when the New York State Department of Labor (NYSDOL) will issue its industry-specific standards for preventing exposure to airborne infectious diseases. Once the NYSDOL standards are published, every New York employer will be required to adopt the applicable NYSDOL industry standard or create its own prevention plan that meets or exceeds the NYSDOL standard applicable to its industry. The NYSDOL standards will address requirements on procedures and methods on a wide range of issues, including:

• Employee health screenings

• Personal protective equipment (PPE)

• Cleaning and disinfecting of shared equipment and frequently touched surfaces

• Compliance with mandatory or precautionary orders of isolation or quarantine

• Compliance with applicable engineering controls such as proper air flow and exhaust ventilation

• Compliance with any applicable laws, rules, regulations, standards, or guidance on notification to employees and relevant local agencies of potential exposure to airborne infectious disease at the work site

• Verbal review of infectious disease standards, employer policies, and employee rights

• If an employer chooses to create its own exposure prevention plan, it must be developed with either collective bargaining representatives (if unionized) or with employee participation.

Critically, employers must provide employees with copies of their exposure prevention plans in writing in English and in the language identified by each employee as the primary language of such employee upon the effective date of the law, reopening after a period of closure due to airborne infectious disease, and upon hiring. The plan should also be posted in a prominent location within the work site. Copies of the plan must also be included in employee handbooks if the employer maintains such a handbook.

The HERO Act also prohibits employers from discriminating against, threatening, or retaliating against employees for exercising certain rights and reporting violations or concerns relating to the plan or a potential exposure.

If the Commissioner of the NYSDOL finds an employer has violated any provision of the law or prevention plan, the Commission may assess a civil penalty. Repeated violators face significantly increased penalties and having their conduct enjoined. Employees may also bring a civil action under certain circumstances, which could result, among other things, in an award of attorneys' fees.

The second wave of changes, which become effective on November 1, 2021 (New York Labor Law § 27-d), require private-sector employers of 10 or more employees to permit the creation of joint labor-management workplace safety committees. These committees will be authorized to:

• Raise health and safety concerns, hazards, complaints, and violations to the employer, whereby the employer is obligated to respond

• Review and provide feedback on any policy put in place pursuant to the HERO Act or the workers' compensation law

• Review the adoption of any policy in the workplace in response to any health or safety law, ordinance, rule, regulation, executive order, or other related directive

• Participate in any site visit by any governmental entity responsible for enforcing safety and health standards

• Review any report filed by the employer related to health and safety of the workplace

• Regularly schedule a meeting during work hours at least once a quarter

Employers must also permit safety committee designees to attend training, without loss of pay, relating to their work on the committee as well as on occupational safety and health.

The HERO Act is the latest installment of the ever-evolving environment of COVID-workplace regulations. As offices reopen and employees return to work, New York-based employers should review their return-to-work guidelines and budget for potential new expenditures in line with the HERO Act. Our firm will continue to monitor updates to the HERO Act and is available to provide any necessary guidance on these new workplace requirements.