New York State employers should be aware of a recent law aimed at protecting workers from COVID-19 and other airborne infectious diseases, the New York Health and Essential Rights Act (HERO Act), which imposes significant obligations on covered employers. Among other things, the HERO Act requires the New York State Department of Labor (NYSDOL) to develop industry-specific model safety standards, requires private New York State employers of all sizes to implement and distribute health and safety plans that meet specified requirements, and requires certain employers to permit the creation of joint employer-employee workplace health and safety committees.
Model Safety Standards
Under the HERO Act, the NYSDOL, in collaboration with the New York State Department of Health, must create and publish industry-specific model safety plans for preventing exposure to airborne infectious diseases, as well as a general model safety plan for any industry not specifically covered. The list of topics that the NYSDOL must address in its standards is lengthy and includes rules regarding face coverings and personal protective equipment, health screening measures, hand hygiene, cleaning and disinfecting, social distancing measures, and compliance with mandatory or precautionary orders of quarantine following COVID-19 exposure.
Mandatory Employee Health and Safety Plans
Within 30 days after the NYSDOL issues its standards, New York employers of all sizes will be required to (i) develop and implement a health and safety plan that complies with or exceeds the NYSDOL standards; (ii) post the health and safety plan in the work site; and (iii) distribute the plan to all employees (including to new hires upon hiring, and within a specified time period after the adoption of the plan and after reopening after a period of closure due to airborne infectious disease). Employers will be required to provide the plan to employees in writing in English and in the language identified by each employee as the employee’s primary language (if the NYSDOL has issued a model standard in such language). The plan must also be posted in a visible and prominent location within each worksite. Employers that maintain employee handbooks are required to include the plan within such employee handbook.
Employers who fail to adopt a health and safety plan, or who fail to comply with their adopted health and safety plan, can be subject to civil fines and penalties. The HERO Act also creates a private right of action for employees and includes an anti-retaliation provision.
Workplace Health and Safety Committees
The HERO Act also requires that employers of ten or more employees permit employees to establish and administer a joint employer-employee workplace safety committee. The committee, two-thirds of which must be made up of non-supervisory employees, will be authorized to meet at least once a quarter for up to two hours, and will be responsible for raising health and safety concerns to the employer and reviewing any workplace policy related to health and safety, among other tasks.
HERO Act Effective Date
The HERO Act was signed into law on May 5, 2021 with an effective date of June 4, 2021. However, New York Governor Andrew Cuomo recently signed a bill to amend the law, delaying its effective date until July 5, 2021. The purpose of the amendments are, in part, to give the NYSDOL more time to create the model safety plans. Employers will not be required to implement their safety plans until 30 days after the NYSDOL publishes its model standards. Employers will have 60 days thereafter to provide the plans to their employees.
In the meantime, New York State employers may want to review their COVID-19-related health and safety plans and start preparing to make any changes that will be required by the HERO Act.
*Many thanks to summer associate Elyssa Diamond in preparing a draft of this blog post.