On May 5, 2021, Governor Andrew Cuomo signed the New York HERO Act (the Act) into law to address the threat of COVID-19 and other airborne infectious diseases in the workplace. The Act establishes various employer obligations that go into effect immediately, but Governor Cuomo has already declared that more obligations are likely coming. As employers prepare for the return to the physical workplace, they should keep the following requirements of the Act in mind.
What Employers Need to Do Immediately – Establish a Written Health and Safety Plan
The Act requires the New York Department of Labor (NYDOL) to publish model airborne infectious disease exposure standards (Model Standards) for employers no later than June 4, 2021. Within 30 days of the publication of the NYDOL's Model Standards, employers must implement a written health and safety plan for the protection of employees against airborne infectious diseases. Employers may choose between adopting the Model Standards or implementing their own compliant written health and safety plan. The Model Standards will prescribe health screenings, face coverings, personal protective equipment (PPE), hand hygiene, cleaning and disinfecting protocols, social distancing, and the designation of supervisory employees to monitor compliance, among other measures that employers must implement in the workplace. They will also take into account different levels of airborne infectious disease exposure, circumstances where states of emergencies have been declared, and applicable federal standards, along with specific industry needs. Once an employer's health and safety plan is implemented, they must provide notice of their plan to their employees in writing immediately, upon hire, and upon reopening after an infectious disease-related closure. Notice of the health and safety plan should be distributed through postings in the workplace and within an employer's employee handbook. This written notice must be in English and the employee's primary language.
What Employers Need to Do Eventually – Establish a Labor-Management Safety Committee
By November 1, 2021, employers with at least 10 employees must permit their employees to establish and administer a joint labor-management workplace safety committee (Committee). The Committee must be composed of employee (or collective bargaining representative) and employer designees, provided at least two-thirds of the Committee is non-supervisory employees. The Committee must be allowed to raise health and safety concerns with the employer, review the employer's disease prevention policies required by the Act or any other regulation, participate in government site visits, and send members to attend training sessions related to the function of the Committee.
Collective Bargaining and Employee Input
In the event an employer adopts a health and safety plan pursuant to this Act that is an alternative of the Model Standards, the employer must do so pursuant to an agreement with the collective bargaining representative, if any, or with meaningful input of employees if there is no collective bargaining representative.
No Retaliation and Remedies
Additionally, effective June 4, 2021, the Act prohibits discrimination and retaliation against employees who exercise their rights under the Act. To enforce this requirement, the NYDOL is empowered to penalize employers up to $50 per day for failure to adopt health and safety protocols and between $1,000 and $10,000 for failure to comply with the adopted health and safety protocols. The Act also grants a private cause of action to employees seeking injunctive relief against their employer for failure to comply and permits attorneys' fees and liquidated damages of up to $20,000.
More to Come
Despite signing the Act, Governor Cuomo indicated in an accompanying memorandum that he has reached an agreement with the state legislature to amend the Act in the near future to provide more definite guidelines and timelines to the DOL and employers and to permit employers to cure safety violations before facing the threat of litigation.
We will continue to monitor developments regarding the HERO Act and these forthcoming amendments. New York employers should prepare to administer and post a compliant health and safety plan as soon as the NYDOL issues its Model Standards and be mindful of the other upcoming deadlines. If your organization has any questions about New York State's new requirements, please contact the authors of this alert or any other attorney in Venable's Labor and Employment Group.