New York HERO Act Requires Urgent Employer Action

Under this new law, employers have until August 5, 2021, to either (1) adopt a prevention plan template developed by the New York State Department of Labor (“NYSDOL”) or (2) develop and establish an alternative prevention plan that meets or exceeds minimum requirements. The NY HERO Act applies to all private employers in New York State with at least ten employees. Notably, the definition of “employer” does not include public or government agencies.  

On July 6, 2021, the NYSDOL published its general Airborne Infectious Disease Exposure Prevention Standard (the “General Prevention Plan”), with several industry-specific prevention plans for the following industries: agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail. The General Prevention Plan applies to all employers and employees, except (1) where an industry-specific standard applies; or (2) for employees covered by a temporary or permanent standard adopted by the Occupational Safety and Health Administration (“OSHA”)setting forth applicable standards regarding airborne infectious agents and diseases. 

The NY HERO Act and template prevention plans address safety measures, such as:

• Employee health screenings; 

• Face coverings; 

• Required PPE (maintained in a sanitary and reliable condition) provided at the employer’s expense; 

• Accessible workplace hand hygiene stations and maintaining healthy hand hygiene, which includes providing adequate break times for employees to wash their hands; 

• Regular cleaning and disinfecting of shared equipment and frequently touched surfaces; 

• Social distancing for employees, consumers, and customers; 

• Compliance with mandatory or precautionary orders of isolation or quarantine issued to employees; 

• Compliance with applicable engineering controls such as proper airflow, exhaust ventilation, or other special design requirements; 

• Designation of one or more supervisory employees to enforce compliance with the prevention plan and any other federal, state, or local guidance related to avoidance of spreading an airborne infectious disease as applicable to employees and third parties; 

• Compliance with any applicable laws, rules, regulations, standards, or guidance on notification to employees and relevant state and local agencies of potential exposure to airborne infectious disease at the worksite; and 

• Verbal review of infectious disease standards, employer policies, and employee rights. 

Employers are required to post the adopted prevention plan in a visible and prominent location. Additionally, employers providing employee handbooks must include the prevention plan as a part of its handbook. 

Of note, the General Prevention Plan does not relieve any employer from the requirements of any other state or federal guidance or requirements related to preventing the spread of an airborne infectious agent or disease to employees, third parties, and members of the public within the workplace. Specifically, health care employers should be aware of their legal obligations under OSHA’s COVID-19 Emergency Temporary Standard (“ETS”), which went into effect on June 21, 2021. Pursuant to the ETS, health care employers were required to be substantially compliant by July 21, 2021. Given OSHA’s recent history of strict enforcement regarding COVID-19/coronavirus protections, health care employers should prioritize compliance with the ETS’s requirements.

The NY HERO Act Amendment 

The NY HERO Act was amended on June 11, 2021, to account for the overbroad language of the original legislation (the “Amendment”). The Amendment includes a more narrow view of what constitutes a “work site,” to “any physical space, including a vehicle … that has been designated as the location where work is performed over which an employer has the ability to exercise control.” (emphasis added). The new definition of “work site” does not include telecommuting or telework sites unless the employer can exercise control over such sites. While limiting the definition of “work site,” the Amendment expanded the definition of a covered employee to include “individuals working for digital applications or platforms.” 

The Amendment also addressed timing issues, and while the NYSDOL had to submit prevention plan templates by July 5, 2021, employers do not have to implement plans for 30 days thereafter or until August 5, 2021. After adopting a prevention plan, employers will then have 30 additional days (until September 4, 2021) to provide employees with a written copy of the adopted standard. New hires must receive the adopted prevention plan at the beginning of their employment. If a worksite is closed due to an infectious disease designation, employers must provide the prevention plan within 15 days after reopening. 

Although employers are required to adopt a prevention plan by August 5, 2021, the prevention plan only needs to be activated “when an airborne infectious disease is designated by the New York State Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health.” This means employers must adopt a plan now, which will go into effect upon a designation by New York State. Despite the recent surge of COVID-19 and its different variants, no designation has been made by the New York State Commissioner of Health, and therefore, prevention plans are not required to be in effect.  

Workplace Safety Committees 

Another component of the NY HERO Act affords employees the right to form workplace safety committees, which employers must recognize. These committees may begin on November 1, 2021. Under the original law, these committees would have been permitted to review any policy required by New York Labor Law or Workers’ Compensation Law, without regard for whether the policy dealt with workplace safety or health. Under the amendment, however, the law limits such review to policies “relating to occupational safety and health.” 

Anti-Retaliation 

The NY HERO Act also affords employees with broad-based retaliation protections. Specifically, no employer may discriminate, threaten, retaliate against, or take any adverse action against any employee for (1) exercising his or her rights under the employer’s prevention plan; (b) reporting violations of law; (c) reporting concerns about exposure to airborne infectious disease; and (d) in some instances, refusing to work. 

Liability and Penalties 

The Amendment requires employees to give the employer notice of a violation before commending a lawsuit, and in most cases, employers have 30 days to cure any alleged deficiency. An employee is prohibited from bringing a civil action if the employer remedies the alleged violation.  There is a 6-month statute of limitations during which a civil action alleging a violation of the NY HERO Act may be brought, and this runs from the date the employee gained knowledge of the alleged violation. 

As to penalties, the Amendment removed the earlier provision allowing courts to order payment of liquidated damages of no greater than $20,000 unless the employer proved a good faith basis to believe that the established health and safety measures were in compliance with the prevention plan. Under the Amendment, employers may request attorneys’ fees and costs for frivolous lawsuits. 

Next Steps and Takeaway 

• New York employers must act quickly to comply with the NY HERO Act, including adoption of a prevention plan by the August 5, 2021 deadline. 

• Employers must provide employees with a written copy of the adopted prevention plan by September 4, 2021. 

• By November 1, 2021, employers must begin allowing employees to form joint labor-management workplace safety committees. 

• Employers must remain informed regarding airborne infectious disease outbreak designations to adhere to the NY HERO Act.