On July 9, 2021, Nick Reiter was quoted in Law360 on New York’s new airborne virus law. According to the article, the New York Department of Labor issued model workplace safety standards as it was required to do under the NY Hero Act, which was signed into law in May by New York Gov. Andrew Cuomo. He described it at the time as a "first-in-the-nation" statute that requires employers to have plans in place for preventing the spread of airborne infectious diseases.
“They've really created a very robust set of guidelines and rules for employers to follow to ensure that their workplace does not create an unreasonable risk of exposure to airborne infections," said Reiter.
On top of the various requirements the Hero Act imposes, the law and the state's accompanying model standards include lengthy provisions that prohibit employers from punishing any worker who "believes in good faith" that the prevention plan has been violated and lodges a report or refuses to work because the person fears unsafe working conditions. Employees will also have a private cause of action under the law that allows them to haul employers into court if they believe a workplace airborne disease plan isn't being followed.
Reiter called the law's anti-retaliation language "one of the most notable things" about the statute since it "essentially creates a new protected activity under state law." The law, he said, makes a workers' internal complaint of an unreasonable risk of exposure to an airborne infectious disease — from a retaliation standpoint — similar to complaints they might lodge alleging bias or harassment, which he says is "a big change to the legal landscape under state law."
"What you're going to have is if an employee believes in good faith that he or she is exposed to that airborne infectious disease and that there is a good faith belief of a violation or something inconsistent with Department of Labor's model safety standards, that employee by speaking up … may be job protected under state law," Reiter added. "We haven't had that before."
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