On May 5, 2021, Governor Cuomo signed into law the Health and Essential Rights Act (“HERO Act”), in response to COVID-19 (and possible future infectious disease) safety concerns. The HERO Act requires the New York State Department of Labor
(“NYSDOL”) to issue enforceable minimum workplace health and safety standards and imposes significant new health and safety obligations on New York employers. The HERO Act adds two sections to the New York Labor Law: (1) the prevention of occupational exposure to an airborne infectious disease (effective June 4, 2021) and (2) workplace safety committees (effective November 1, 2021).
Prevention of Occupational Exposure to Airborne Infectious Disease
Initially, the NYSDOL is required to create model airborne infectious disease exposure prevention standards, differentiated by industry, for all worksites. All employers in New York will be required to adopt and provide to all of their “employees” (including independent contractors, part-time workers, domestic workers, home care workers, temporary and seasonal workers, and individuals working for staffing agencies, and other contractors and subcontractors working on behalf of an employer at a worksite), an airborne infectious disease exposure prevention plan to protect employees from exposure to COVID-19 and other infectious diseases in the workplace. “Worksite” is defined to mean “any physical space, including a vehicle, that has been designated as the location where work is performed.” “Employer” is defined to cover almost any entity or person that pays individuals for labor, regardless of size or number of employees.
The NYSDOL model standard will establish minimum requirements for preventing exposure to airborne infectious diseases in the workplace. These standards will include requirements for employers on procedures and methods for employee health screenings; PPE; accessible workplace hand hygiene stations; regular cleaning and disinfecting of shared equipment; effective social distancing; compliance with mandatory or precautionary orders of isolation or quarantine; compliance with applicable engineering controls such as proper airflow and exhaust ventilation; and designation of one or more supervisory employees to enforce compliance.
Employers are required to establish an airborne infectious disease exposure prevention plan either by adopting the model standard relevant to their industry or by establishing an alternative plan that equals or exceeds the minimum standards set forth by the model standard. Employers must provide their prevention plans to all their employees in writing in English and in the language identified by each employee as his or her primary language upon reopening after a period of closure due to airborne infectious disease, at the time of hiring, and upon the June 4, 2021 effective date of the HERO Act if the employer is permitted to operate at that time. In addition, employers must post their prevention plans in a visible and prominent location within their worksites and include the prevention plan in their employee handbooks.
Employers are prohibited from discriminating, retaliating or taking adverse action against any employee for exercising their rights under this law and the NYSDOL may assess a civil penalty upon an employer or person found to have violated any provision of it.
Workplace Safety Committees
Effective on Nov. 1, 2021, employers must allow their employees to establish and administer workplace safety committees, if an employee requests it. Each safety committee shall be composed of employee and employer designees, provided two-thirds of the committee are non-supervisory employees (selected by non-supervisory employees). The safety committee and workplace safety designee will be authorized to raise health and safety concerns, hazards, complaints and violations to the employer to which the employer must respond; review any policy put in place in the workplace required by any provision of the Labor Law or any provision of the Workers’ Compensation Law; review the adoption of any policy in the workplace in response to any health or safety law, regulation or executive order; participate in any site visit by any governmental entity responsible for enforcing safety and health standards; review any report filed by the employer related to the health and safety of the workplace; and schedule a meeting during work hours at least once a quarter.
Employers are prohibited from retaliating against any employee who participates in the activities or establishment of a safety committee for any actions taken pursuant to their participation.
Employers should be ready to implement the provisions of this law as soon as they become effective (June 4 and November 1), and should be working with counsel to develop policies and procedures.
If you have any questions regarding the issues discussed above or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Jennifer Shoemaker, the author of this piece, here or at (585) 258-2825.