New York Governor Andrew Cuomo signed the New York Health and Essential Rights Act (the HERO Act) into law on May 5, 2021, requiring the New York State Department of Labor and New York State Department of Health to create industry-specific airborne infectious disease standards that must be used by all employers doing business within the State of New York.
The standards codify many of the requirements currently applicable to employers pursuant to Governor Cuomo’s COVID-19-related executive orders and New York Forward re-opening guidelines. The HERO Act also requires employers to permit their employees to form a “workforce safety committee” with the authority to review and police employer compliance with the new standards. The HERO Act will become law June 4, 2021; however, many of the provisions will not take effect until a later date.
When signing the bill into law, Governor Cuomo announced a chapter amendment with the state legislature that would make additional revisions into the law, including to give the New York State Department of Labor (DOL) and employers more specific instructions in developing and implementing workplace safety standards and a clearer implementation timeline (the original bill called for the DOL to issue these standards within 30 days of the bill becoming law). Separate from the workplace standard requirements, the provisions related to workforce safety committees, described below, will take effect November 1, 2021.
Covered Employers and Worksites
The HERO Act covers all private-sector employers in New York State. Specific guidelines will be set by industry-specific standards to be created by the DOL and New York State Department of Health (DOH), similar to current New York Forward industry-specific guidelines.
Notably, the HERO Act broadly applies to all workers, including employees, part-time workers, independent contractors, domestic workers, home care and personal care workers, day laborers, farmworkers, and other temporary and seasonal workers. Moreover, the HERO Act applies not only to primary worksites but also to any vehicles that are used as a location where work is performed and any employer-provided housing and transportation. Required safety standards will also apply to any private residence if it is considered to be the primary place of work for a covered employee.
Minimum Standards
The DOL and DOH will create new industry-specific airborne infection disease exposure prevention standards, effectively replacing the existing New York Forward guidelines. These model standards will set the minimum requirements that all workplaces must follow to limit the risk of infectious disease exposure. The minimum standards will take into account the specific risks present in each industry, including the presence of third parties (e.g., customers). The minimum standards will also have multiple levels, with additional requirements based on the presence and severity of an airborne disease and whether a state of emergency has or has not been declared as a result.
The HERO Act requires that the minimum standards include requirements pertaining to many elements of existing New York Forward guidance, including the following:
Adoption and Notice
Employers will be required to either adopt the applicable minimum standards or institute their own alternative plan that meets or exceeds the minimum standards.
The employer’s plan must be provided to every employee in their primary language (if the DOL publishes materials in that language), and all newly hired employees must have the plan provided to them at the time of hiring. The employer’s plan must also be present in any employee handbook and posted in a visible and prominent location in the worksite. Finally, employers must provide the plan to workers and the DOL and DOH upon request.
Workplace Safety Committees
The HERO Act also requires that employers permit employees to establish and administer “joint labor-management workplace safety committees.”
Committees must be composed of at least two-thirds nonsupervisory employees, and the nonsupervisors must be selected by nonsupervisory employees. Committees must be co-chaired by one representative of the employer and nonsupervisory employees.
Members of committees must be authorized to do the following:
Committee members must also be permitted to attend an introductory health and safety training.
Enforcement and Employee Rights
The HERO Act prohibits retaliation against employees for (1) reporting any suspected violations of plan requirements; (2) refusing to work if they believe the employer is unreasonably exposing employees to an airborne disease; or (3) joining or participating in a workplace safety committee.
With respect to enforcement, if there is a violation of the law’s requirements, then businesses will be provided notice of the violation and the requirement to immediately cure the violation. The HERO Act provides for the DOL to investigate potential violations and administer penalties to employers. Specifically, if the DOL finds that an employer has failed to adopt a required plan, the employer may be assessed a penalty of $50 per day. For subsequent violations, the penalty increases to at least $2,000 per day. If the DOL finds that an employer has adopted but failed to abide by a required plan, the employer may be assessed a civil penalty of $1,000 to $10,000. For subsequent violations, the penalty increases to $1,000 to $20,000. Employers will be provided the opportunity to cure any violations before penalties are assessed; however, employers will be required to immediately cure the issue causing the violation.
The HERO Act provides that the DOL, DOH, or state attorney general may also bring suit for an employer’s failure to comply with plan standards. Employees may also bring suit to seek a court order to require compliance with plan standards, but pursuant to the forthcoming chapter amendments to the bill, litigation will be limited to those circumstances where employers are acting in bad faith and failing to cure deficiencies. To the extent an employee is able to bring litigation on these grounds, they may be able to recover attorney fees and liquidated damages of up to $20,000.
Businesses should take steps to comply with the requirements of the law, which may initially include establishing a workplace safety committee and then monitoring for specific minimum standards established by the DOL and DOH applicable to the industry in which each employer operates. Once the DOL and DOH publish those new standards, employers should review them to determine whether their current workplace health and safety plans are compliant. In the meantime, employers must continue to comply with the current state and local COVID-19 reopening guidelines.
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If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
New York
Leni D. Battaglia
Melissa D. Hill
Kimberley E. Lunetta
Douglas T. Schwarz
Princeton
August W. Heckman III