As employees who have worked remotely for months begin to slowly return to their offices, more guidance is emerging as to what their employers can and should do to keep them safe. Just this weekend, the EEOC came out with long-awaited guidance stating that employers may require those who come to the workplace to be vaccinated, which we will cover in a separate post.
States are also issuing their own new rules. As an example, in early May, New York Governor Cuomo signed into law the New York Health and Essential Rights Act (HERO Act), which requires all employers, of any size, to establish a health and safety plan to prevent occupational exposure to airborne infectious diseases. The HERO Act also permits employees, later in 2021, to establish joint employer-employee safety committees.
Below is a summary of the HERO Act’s requirements for New York employers.
Section 1 of the HERO Act requires all private employers, of any size, to create a written prevention plan of health and safety standards to protect employees from workplace exposure to airborne infectious diseases. The New York State Department of Labor (NYS DOL), in consultation with the Department of Health, is directed to publish a model standard, differentiated by industry, which establishes minimum requirements for such plans, by June 4, 2021. The NYS DOL’s model standard is to address, among other topics, (i) employee health screenings, (ii) face coverings, (iii) personal protective equipment, (iv) workplace hygiene stations, (v) regular cleaning and disinfecting of shared equipment, and (vi) social distancing. Employers must either adopt the model plan or create their own plan, which meets or exceeds the minimum requirements. Employers must provide the health and safety plan to all current employees, to new employees upon hire, and to all employees upon reopening after a workplace closure due to an outbreak. Employers should start reviewing their policies now and be prepared to make any adjustments based on the NYS DOL’s model standards. If the employer has an employee handbook, it will also be required to add the plan to the handbook. Employers must also post a copy of the plan in a visible and prominent location within the worksite. It is important for employers to remember that these mandatory safety standards are not just for COVID-19; they are for all airborne infectious diseases. Time to revise your employee handbooks!
Importantly, employers are also prohibited from discriminating or retaliating against employees for:
- Exercising their rights under the HERO Act or the applicable prevention plan;
- Reporting violations of the HERO Act or their employer’s prevention plan to any state local, or federal government entity, public officer, or elected official;
- Reporting concerns over potential airborne infectious disease exposure or seeking assistance or intervention with respect to concerns, to their employer or government entity, public officer, or elected official, or
- Refusing to work based on a reasonable good-faith belief that such work poses an unreasonable risk of exposure to an airborne infection disease.
The NYS DOL can fine employers $50 per day for failure to adopt a safety plan and $1,000 to $10,000 for failure to abide by the safety plan, which fines may increase if the commissioner finds that the employer has violated the Act in the preceding six years. The HERO Act also gives employees a private right of action for injunctive relief, attorneys’ fees (if successful), and “payment of liquidated damages of no greater than [$20,000], unless the employer proves a good faith basis to believe that the established health and safety measures were in compliance with the applicable airborne infectious disease standard.”
Section 2 of the HERO Act requires private employers to permit employees to establish joint employer-employee workplace safety committees. Each workplace safety committee shall be composed of employee and employer designees, provided at least two-thirds are non-supervisory employees. Notably, employers must also allow employees to attend training—without suffering a loss of pay—on the function of worker safety committees, rights established under this section, and an introduction to occupational safety and health. Similarly to the safety standards, an employer cannot retaliate against an employee who participates in a safety committee.
Accordingly, New York employers should review their existing safety and return-to-work plans, keep an eye out for regulations from the NYS DOL, and consult with legal counsel to ensure compliance with the HERO Act’s new health and safety requirements.