On May 5, 2021, the Health and Essential Rights Act (“HERO Act”) was signed into law by Governor Andrew Cuomo. This bill requires employers in New York to implement workplace health and safety plans to prevent exposure to airborne infectious diseases, including COVID-19. The law also directs the New York Department of Labor (“NYDOL”) to create industry-specific model health and safety standards to guide employers. The HERO Act took effect on June 4, 2021.
Employers are now required to implement a workplace health and safety plan that aligns with the NYDOL standards, to be released soon. We anticipate that the model policies to be released by the NYDOL will establish the minimum requirements for:
- Employee health screenings
- Face coverings
- Personal protective equipment
- Hand hygiene
- Social distancing
- Compliance with isolation or quarantine orders
- Ventilation and air flow
- Supervisors overseeing safety measures
- Review of requirements with employees
The law provides employers with an option to either adopt the NYDOL model standards, or develop alternative plans that meet or exceed these standards.
Disclosure to Employees
The HERO Act requires every employer in New York to provide their safety plan in writing to all employees upon hire or request, and after a period of closure due to airborne infectious disease. Each safety plan must be distributed in English and in the primary language of each employee. All new and existing employees must be informed of the safety plan.
Employers must also post their safety plans in a visible and prominent location within the worksite, and include them in employee handbooks.
Workplace Safety Committees
Under the HERO Act, employers are directed to facilitate employees to form and participate in workplace safety committees. These committees may raise health and safety concerns, review any workplace safety policy, participate in site visits, and examine any report filed by the employer related to the health and safety of its workplace.
Prohibitions on Harassment and Retaliation
The HERO Act also prohibits employers from discriminating, threatening, or retaliating against any employee who reports a violation of their workplace safety standards or refuses to work in an area with an unreasonable risk of exposure to an airborne infectious disease due to conditions inconsistent with the safety plan. The NYDOL’s model standards will include this anti-discrimination and retaliation provision. Additionally, these prohibitions also extend to an employee’s participation in a workplace safety committee.
Penalties and Civil Liability
There are some tough penalties for New York employers who fail to comply with this new law, including a penalty of $50 for each day of non-compliance in failing to adopt a safety plan. Additionally, an employer may be fined between $1,000 and $10,000 for failing to abide by its own safety plan.
The HERO Act also provides a private cause of action which allows employees to bring a civil action against their employer for violating their workplace safety plans. Employees are permitted to seek injunctive relief to force their employer to comply with the HERO Act, and may recover attorneys’ fees and up to $20,000 in damages.
Future Amendments
At the time of signing, Governor Cuomo also promised that additional amendments will be passed to make technical changes to the bill. Specifically, Governor Cuomo plans to amend the HERO Act by giving the NYDOL and employers more specific instructions on how to implement workplace safety standards and provide for an “immediate requirement” of employers to rectify any violations of their safety plans.
Next Steps for Employers
While awaiting the release of the NYDOL’s model safety standards, employers should review their existing safety plans and develop a strategy to implement any new measures that need to be created. Once the NYDOL publishes model plans, employers can then decide whether or not to adopt them or draft their own compliant policies. Employers should also develop training sessions to inform and train employees on new policies and procedures.
[1] The author thanks law clerk Jeffrey Meehan for his assistance in preparing this client alert.