Original post on June 1, 2021 (“Making the Workplace a Safer Place: A Job for New York’s HERO Act”)

Key takeaways for New York employers from the NY HERO Act, as amended:

The NYS DOL must publish a model safety standard by July 5, 2021.
30 days thereafter, New York employers must either adopt the model standard or create their own health and safety plan to prevent occupational exposure to airborne infectious diseases, which meets or exceeds the minimum requirements established by the NYS DOL.
Every employer must provide its prevention plan to its employees, within 30 days after adoption of the plan, within 15 days after reopening after a period of closure due to airborne infectious disease, and to any newly hired employee, upon hiring the new employee.
Employers must permit employees to establish joint employer-employee workplace safety committees, beginning on November 1, 2021.

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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. Earlier this month, the EEOC came out with long-awaited guidance stating that employers MAY require those who come to the workplace to be vaccinated, which we covered in a separate blog 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 that ALL employers, of any size, establish a health and safety plan to prevent occupational exposure to airborne infectious diseases based on certain minimum standards. According to the June 11, 2021 amendments to the HERO Act, the New York State Department of Labor (“NYS DOL”) must establish industry-specific model disease prevention protocols by July 5, 2021. As explained below, the HERO Act also permits employees to establish joint employer-employee safety committees, beginning on November 1, 2021.

Below is a summary of the HERO Act’s requirements (as amended) for New York employers to anticipate.

Safety Plans

As stated above, the first part of the 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 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 July 5, 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. Within 30 days after the Commissioner publishes the model standard, employers must either adopt the model standard or create their own plan, which meets or exceeds the minimum requirements established by the NYS DOL. Every employer must provide such prevention plan to his or her employees, within 30 days after adoption of the plan, within 15 days after reopening after a period of closure due to airborne infectious disease, and to any newly hired employee, upon hiring the new employee. Businesses permitted to operate as of the effective date, shall provide such prevention plan to all employees within 60 days after the Commissioner publishes the model standard relevant to the industry. If the employer has an employee handbook, it must also add the plan to the handbook. Employers must also post a copy of the plan in a visible and prominent location within each 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 Act or the applicable prevention plan;
Reporting violations of the 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.

As of July 5, 2021, employers may be liable for discrimination or retaliation under the HERO Act. 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 Act also gives employees a private right of action for injunctive relief against an employer alleged to have violated the prevention plan in a manner that creates a “substantial probability that death or serious physical harm could result to the employee” from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted, or are in use, by the employer, unless the employer did not and could not, with the exercise of reasonable diligence, know of the presence of the violation. The amendments modify the private right of action in several key respects:

Employees must provide their employer with 30 days’ notice and an opportunity to cure a violation before bringing suit, except where an employee alleges with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith.
An employee is precluded from bringing suit if the employer corrects the alleged violation, or more than 6 months have passed from the date that the employee had knowledge of the alleged violation.
Employees may no longer be awarded liquidated damages.
A court may award costs and attorneys’ fees to the employer, if the court finds that an employee’s claim is frivolous.

Safety Committee

The second part of the Act requires private employers to permit employees to establish joint employer-employee workplace safety committees, beginning on November 1, 2021. Each workplace safety committee shall be composed of employee and employer designees, provided at least two-thirds are non-supervisory employees. Workplace safety committees shall be authorized to, among other things, regularly schedule meetings during work hours at least once a quarter that shall last no longer than 2 hours. Employers must also allow employees to attend a training (limited to no more than 4 hours)—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.

The amendments also specify that employers are only required to permit one safety committee per worksite, and the amendments limit the purview of the workplace safety committees to issues of occupational health and safety.

Accordingly, with these new timeframes in mind, and an employer’s clarified obligations, New York employers should review their existing safety and return-to-work plans, keep an eye out for regulations from the NYSDOL, and consult with legal counsel to ensure compliance with the HERO Act’s new safety requirements, as amended.

New York Gives Employers More Time to Be a HERO