On May 5, 2021, Governor Cuomo signed legislation known as the New York Health and Essential Rights Act, or “NY HERO Act.”  This new law imposes substantial new requirements on private sector employers related to workplace safety.  

First, the Act requires all private sector employers to adopt standards to protect workers from COVID-19 and other airborne diseases; this requirement goes into effect on Friday, June 4, 2021.  Second, this new law requires private sector employers with at least 10 employees to allow for the formation of a “joint labor-management workplace safety committee” to address any safety issues in the workplace; this requirement goes into effect on November 1, 2021.

Adoption of Airborne Infectious Disease Standard (N.Y. Labor Law §218-b)

With the addition of a new §218-b to New York Labor Law, the NY HERO Act requires employers in New York State to adopt an “airborne infectious disease exposure prevention plan” for each work site they operate.  The law covers all private sector employers and does not contain any exemption for employers based on their size (number of employees) or annual income; therefore, all private sector employers in New York State must comply with this law.  Interestingly, the law exempts all public sector employers (including the state, political subdivisions, public authorities, and any other governmental agency) from these requirements.  

The HERO Act requires employers to develop an “airborne infectious disease exposure prevention plan” for each work site, meaning that an employer may need to develop such a plan for each and every place where work is performed.  A work site includes employer-provided housing and employer-provided vehicles or transportation.  A work site does not include an employee’s residence unless the employer provided that residence and it is the employee’s primary place of work.

Relative to each work site identified, the employer is responsible for adopting an “airborne infectious disease exposure prevention plan” in accordance with standards to be established by the New York State Department of Labor.  Under the HERO Act, the Department of Labor is responsible for developing different airborne infectious disease exposure prevention standards for various industries, and then making those standards available to all employers.  The law requires that the airborne infectious disease exposure prevention standards must address a myriad of topics, including:

  • employee health screenings; 
  • any required face coverings; 
  • any required personal protective equipment (PPE) for an employee’s eyes, face, head, and extremities; 
  • ensuring accessible workplace hand hygiene stations, guidance for maintaining healthy hand hygiene, and that employers provide sufficient break times for employees to use those hand-washing facilities; 
  • cleaning and disinfecting of shared equipment and frequently touched surfaces; 
  • required and effective social distancing requirements for employees and customers; 
  • instructions for compliance with mandatory or precautionary orders of isolation or quarantine issued to employees; 
  • guidance for complying with applicable engineering controls (relative to air flow and exhaust ventilation); 
  • identification of at least one supervisory employee who is responsible for enforcing compliance with the employer’s airborne infections disease exposure prevention plan and any other guidance that may be issued (by Federal or state authorities) concerning the spread of an airborne infectious disease; 
  • guidance for how the employer will comply with applicable laws, regulations, or standards to notify employees of possible exposure to airborne infectious disease at the work site; and
  • requirement for verbal review of the Department of Labor’s applicable airborne infectious disease standard, the employer’s policies, and each employee’s rights.

The HERO Act also includes an extensive anti-retaliation provision, which must also be described in the employer’s plan.  In this regard, the law expressly prohibits an employer from subjecting an employee to retaliation, discrimination, an adverse employment action, or any act that adversely affects an employee’s terms and conditions of employment if they engage in any of the following actions: (a) if the employee exercises their rights under N.Y. Lab. L. §218-b or the employer’s plan; (b) if the employee reports alleged violations of the employer’s plan to any government official; or (c) if the employee reports concern about an exposure to airborne infectious disease in the workplace to a government official.  

In addition, the HERO Act contains a unique provision that allows an employee to refuse to report to work because they reasonably believe, in good faith, that the workplace unreasonably exposes the employee (or other employees) to a risk of exposure to an airborne infections disease because working conditions exist that are not consistent with applicable law, rules or regulations (including the standards developed by the State Department of Labor).  However, in order to invoke this provision, the employee, another employee, or employee representative must have notified the employer of the condition and the employer failed to cure the condition, or the employer knew (or should have known) of the condition and did not rectify the problem.  In such a circumstance, the employee can refuse to report for work, and the employer may not retaliate against that employee by taking any adverse employment action.  

As discussed above, it is incumbent on the State Department of Labor to develop industry-specific standards and a model airborne infectious disease exposure prevention plan for employers to adopt.  An employer complies with the law by adopting the model plan developed by the Department of Labor, or by creating its own plan that meets or exceeds the applicable, industry-specific standards.  However, if the employer decides to develop its own plan (instead of adopting the model plan created by the State), the employer must develop the plan with the collective bargaining representative (if the workplace is unionized) or with “meaningful participation of employees” (in a non-unionized workplace).  Where such an alternative plan is developed, the plan must “be tailored and specific to hazards in the specific industry and work sites of the employer.”  

Once the employer has adopted their “airborne infectious disease exposure prevention plan,” the employer is required to provide it to each employee upon hire, upon the effective date of the NY HERO Act (June 4, 2021), and upon reopening after closure due to airborne infectious disease.  The notice must be provided in English and in the language identified by the employee as their primary language (as long as the Department of Labor has developed a model notice in that language); if the Department of Labor has not developed a model document in that language, the employer must provide the employee with an English-language notice only.  In addition to providing the employer’s “airborne infectious disease exposure prevention plan” at the times noted above, the employer’s plan must also: (a) be posted in a “visible and prominent location” at the worksite; (b) in the employer’s employee handbook, if the employer utilizes an employee handbook; and (c) be provided, upon request, to any employee, independent contractors, employee representatives, collective bargaining representatives, the Department of Labor, or the State Commissioner of Health.

Finally, the HERO Act includes significant enforcement provisions. The Department of Labor can, after investigation and adverse findings against an employer, assess a civil penalty of at least $50 per day for the employer’s failure to adopt an airborne infectious disease exposure prevention plan.  Moreover, the Department of Labor can assess penalties of between $1,000 and $10,000 if an employer fails to abide by an adopted airborne infectious disease exposure prevention plan.  In addition to enforcement by the Department of Labor, an employee may commence a civil action against an employer for violation of the NY HERO Act, if the employer violated their airborne infectious disease exposure prevention plan and that violated created a substantial probability of death or serious physical harm could result from that condition.  In such a proceeding, the employee may seek injunctive relief from the employer, an award of liquidated damages of up to $20,000, and an award of the employee’s attorneys’ fees and costs; however, an employer may escape such liability if they can demonstrate a good faith basis to believe that their established health and safety measures complied with the applicable airborne infectious disease standard.  If an employee pursues a retaliation claim, the Department of Labor or the employee can obtain significant relief, including reinstatement, lost wages, liquidated damages, civil penalties, and an award of attorneys’ fees and costs.

These changes go into effect on June 4, 2021.  Thus, the State Department of Labor has very little time to prepare, adopt and publish the model airborne infectious disease exposure prevention standards that are mandated by this new statute.  Moreover, once those standards are adopted, employers will likely have little time to plan for or prepare their own plans and policies.  Accordingly, we strongly recommend that employers closely watch for issuance of model standards by the Department of Labor that are applicable to the employer’s industry, and coordinate with counsel to prepare a policy once those standards are available.

Creation of Workplace Safety Committees (N.Y. Labor Law §27-d)

In addition to requiring employers to adopt an “airborne infectious disease exposure prevention plan” for each work site they operate, the NY HERO Act also requires that employers allow employees to form a “joint labor-management workplace safety committee.”  This law only applies to private sector employers with ten (10) or more employees; as with Labor Law §218-b, it does not apply to public sector employers (including the state, political subdivisions, public authorities, and any other governmental agency).  

The idea of forming a “joint labor-management workplace safety committee” is derived from a similar provision in the Labor Law that allows public sector employee unions to form such committees to handle workplace safety issues.  With regard to private sector employers, the requirements in the NY HERO Act are a bit more specific.

  • An employee (or group of employees) may establish and administer the committee with employee and employer representation.
  • Two-thirds of the committee’s members must be non-supervisory employees.
  • Employee representatives must be selected by non-supervisory employees, and only non-supervisory employees may be selected by employees.  An employer is prohibited from interfering with the selection of employees who serve on the committee.
  • Committees must be co-chaired by a representative of management and one non-supervisory employee
  • A committee representing geographically distinct work sites may be formed, as necessary.

If the workforce is representative by a union, the union is responsible for selecting employees to serve on the committee.  

The joint labor-management workplace safety committee or a member of that committee (known as a “designee” in the law) is authorized to: (a) raise health and safety concerns, hazards, complaints and violations to the employer, to which the employer must respond; (b) review any policy established in the work place in conformity with any requirement of the State Labor Law or the Workers’ Compensation Law, and provide feedback concerning said policy; (c) review any policy in the workplace adopted in response to a health or safety law, rule, regulation, executive order, or other legal directive; (d) participate in a site visit by a governmental entity responsible for enforcing workplace health and safety standards; (e) review any report filed by the employer regarding workplace health and safety; and (f) “regularly schedule a meeting [of the joint labor-management workplace safety committee] during work hours at least once a quarter.”  In addition, a committee member may attend, without loss of pay, training concerning the function of worker safety committees, rights under New York Labor Law §27-d, and an introduction to occupational safety and health.

Employees who participate in the work of the joint labor-management workplace safety committee are protected from retaliation based on their committee work.  If an employee is subjected to retaliation, they can pursue a claim against the employer and obtain relief such as reinstatement, lost wages, liquidated damages, civil penalties, and an award of attorneys’ fees and costs.

This new statute becomes effective on November 1, 2021.  Therefore, employers have some time before they must grapple with this requirement.  Moreover, the statute provides the Department of Labor with time to consider whether to adopt new rules and regulations regarding the requirements of Labor Law §27-d.  However, employers should prepare for this change and the possibility that employees will seek the creation of a joint labor-management workplace safety committee later this year.

Scott DeLuca can be reached at rsdeluca@kavinokycook.com