As we previously reported, on May 5, 2021, Governor Andrew Cuomo signed the New York HERO Act (the Act) into law. Since then, pursuant to the Act, the New York State Department of Labor (DOL) has released its Infectious Disease Exposure Prevention Standard (the Standard) and Model Airborne Infectious Disease Exposure Prevention Plan (the Model Plan), as well as specific templates for 11 different industries. Additionally, the Act has been amended to clarify and narrow existing provisions to alleviate concerns of businesses that the Act was overbroad as originally written. Below are some of the key takeaways.
Exposure Prevention Standards and Plans
In accordance with the Act, on July 5, 2021, the DOL released the Standard, the Model Plan, and 11 different industry-specific airborne infectious disease exposure prevention plans that conform to employers' obligations set forth in the Act and the Standard. Employers must adopt either the Model Plan or one of the industry-specific plans, or create their own compliant plan by August 5, 2021 (the adopted plan, an Employer Plan). It is important to note that, while the employer must adopt one of the aforementioned Employer Plans by this date, the Employer Plans are to go into effect only when the New York State Commissioner of Health (Commissioner) has designated an airborne infectious disease as a highly contagious communicable disease that presents a serious risk of harm to the public. Importantly, this designation is not currently in effect for the COVID-19 pandemic, but the Act is designed to ensure that employers have an Employer Plan in place for any future outbreaks of COVID-19 or any other disease. Employers must provide notice of their compliant Employer Plans to their employees by September 4, 2021, upon hiring new employees, and within 15 days of a reopening due to airborne infectious disease-related closures. And if an employer distributes an employee handbook (which should always be the case), then the Employer Plan must also be set forth in the employee handbook.
How Plans Should Look
The DOL has released Employer Plan templates for agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industrial, personal service, private education, private transportation, and retail, as well as the Model Plan for all other employers. Employers who fit into any of the aforementioned industries should review the applicable template or the Model Plan. Employers may adopt either the applicable template for their industry or the Model Plan, or, alternatively, design and adopt their own Employer Plan, provided such plan provides protections that are the same as or greater than those of the Model Plan. A compliant Employer Plan must include certain "minimum exposure controls," as well as "advanced controls" that employers should consider, depending on the circumstances. In light of the ongoing COVID-19 pandemic, many of the minimum controls outlined in the Employer Plans will be familiar to employers, such as health screenings, face coverings, social distancing, and disinfecting procedures. Advanced controls include elimination of some activities altogether, engineering controls such as advanced ventilation, administrative controls such as spacing out workers, and personal protective equipment (PPE).
Applicable Template/Model Plan or Employer-Designed Plan – Which to Choose?
All covered employers must decide whether to (1) adopt the template plan for their industry (if applicable), (2) adopt the Model Plan, or (3) design and adopt their own Employer Plan that provides protections that are the same as or greater than those of the Model Plan. In the event an employer designs and adopts their own Employer Plan, they must craft the Employer Plan with meaningful participation from their employees. And in the case of a unionized workforce, they must negotiate the employer-designed Employer Plan with their employees' designated collective bargaining representative.
In light of the employee participation requirement for employer-designed plans, most employers will likely find that adoption of their industry's template plan or the Model Plan results in less burden to their organization. Still, some employers may nevertheless want to design and adopt their own Employer Plan with input from their employees or their employees' collective bargaining representatives. Employers should draw on their experiences from the past year in determining whether they should adopt the Model Plan or create their own compliant Employer Plan with employee input.
What Happens During an Outbreak
Under the Standard, once the Commissioner makes the proper designation of a highly contagious communicable disease, employers must:
- Immediately review the work site's Employer Plan and update it, if necessary, to ensure that it incorporates current information, guidance, and mandatory requirements, issued by the Centers for Disease Control and Prevention and federal, state, and local governments, related to the infectious agent of concern;
- Finalize and promptly activate the Employer Plan;
- Provide a verbal review of employer policies, rights, and the Employer Plan in a manner that ensures the safety of the employees;
- Provide each employee with a copy of the Employer Plan in English or in the language identified as the primary language of such employees, if available, and
- Ensure that a copy of the Employer Plan is posted in a visible and prominent location at the work site (except when the work site is a vehicle); and
- Ensure that a copy of the Employer Plan is accessible to employees during all work shifts.
Until the expiration of a highly contagious communicable disease designation by the Commissioner, employers must:
- Ensure the Employer Plan is followed by designating a supervisory employee to oversee compliance;
- Monitor and maintain exposure controls pursuant to the Employer Plan; and
- Regularly check for updated information and guidance from state and federal agencies concerning the airborne infectious disease, and update their plans accordingly.
Limits on Employer Liability
The amendments to the Act abolish the up to $20,000 in liquidated damages that were originally available to employees who proved a violation. Instead, outside of the anti-retaliation context (discussed below), employee relief is limited to injunctive relief and attorney's fees and costs. Prior to an employee bringing a private cause of action under the Act to revive any available redress, employees must provide notice to the employer and a 30-day cure period, unless the employee is able to "allege[] with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith." Employees must bring suit within 60 days of knowledge of the alleged violation. Notably, pursuant to the amendments to the Act, courts will now have discretion to award costs and attorney's fees to the employer if the employee's lawsuit is found to be frivolous. These changes should be welcomed by employers, who will now be able to attempt to comply with the Act's obligations without the looming threat of costly litigation.
Anti-Retaliation Provisions
Both the Act and the Standard contain robust anti-retaliation provisions that employers should be aware of. Section 1 of the Act and Section D of the Standard both provide that employers may not "discriminate, threaten, retaliate against, or take any adverse action" against employees for (1) exercising their rights under the Act or the Employer Plan; (2) reporting violations of the Act or the Plan to an employer or any government agency or official; (3) reporting a concern or seeking assistance regarding an airborne infectious disease exposure to an employer or any government agency or official; or (4) refusing to work when the employee, in good faith and after the employer has an opportunity to cure, believes that working conditions are inconsistent with any laws or the Standard and cause an unreasonable risk of exposure to an airborne infectious disease.
Employers should be careful to ensure compliance with their Employer Plans in the event that they need to be implemented, and should avoid taking any adverse action against employees who raise concerns about workplace safety. Employers should also consider training their managers on the new anti-retaliation provisions in order to minimize the risk of a retaliation claim.
Workplace Safety Committee Changes
Reminder: The Act requires that employers with ten or more employees permit their employees to establish a joint labor-management workplace safety committee by November 1, 2021. However, the amended Act changes the language to narrow the reach of these committees. Previously, a committee had the authority to "review any policy put in place in the workplace required by any provision of this chapter or any provision of the workers' compensation law and provide feedback to such policy in a manner consistent with any provision of law." Instead, the Act now allows for these committees to review policies relating to provisions of the law "relating to occupational safety and health" only and to provide feedback on same. The Act's amendments limit these committees to one per work site and clarify that employers with preexisting workplace safety committees need not establish another. Furthermore, the amendments limit the quarterly meetings to two hours and the paid training to four hours.
We will continue to monitor developments regarding the Act. While New York employers do not need to implement their plans until a designation is made by the Commissioner, employers should review the Standard and begin drafting, adopting, and publishing their Airborne Infectious Disease Exposure Prevention Plan. If your organization has any questions about how to comply with New York State's new requirements, please contact the authors of this alert or any other attorney in Venable's Labor and Employment Group.