New York HERO Act Mandates New COVID-19 Workplace Protections and Joint Labor-Management Workplace Safety Committees

The New York Legislature has passed the New York Health and Essential Rights Act ("HERO Act"), NY State Senate Bill S1034B, which requires all New York employers to implement certain health and safety standards and to adopt a prevention plan addressing the spread of COVID-19 and other airborne infectious diseases in the workplace.

Governor Andrew Cuomo previously announced his intention to sign S1034B, which would take effect 30 days after it is signed into law.

New Workplace Health and Safety Standards

As enacted, the HERO Act requires the New York Department of Labor ("NYDOL"), in consultation with the New York Department of Health, to create industry-specific model airborne infectious disease exposure prevention standards, including procedures and methods for:

• Employee health screenings;
• Face coverings;
• Required personal protective equipment ("PPE");
• Hand hygiene;
• Regular cleaning and disinfecting;
• Social distancing;
• Compliance with mandatory or precautionary orders of isolation or quarantine;
• Compliance with applicable engineering controls (e.g., proper air flow);
• Designation of one or more supervisory employees to enforce compliance; and
• Verbal review of health and safety standards.

Employers are required to implement a health and safety plan either by adopting the NYDOL model standard relevant to their industry or by establishing an alternative plan that meets or exceeds the NYDOL standards. Upon reopening and upon hiring, employers are also required to post the adopted plan in the workplace and distribute copies of the plan to all employees in English and in the language identified by each employee as their primary language.¹ Employers with employee handbooks are also required to include the plan in their handbooks.

Employers who fail to adopt a plan will be subject to a penalty of at least $50 per day until a plan is implemented. Employers who fail to comply with an adopted plan could be subject to fines ranging from $1,000 to $10,000.

Employees May Sue to Enjoin Non-Compliance

The HERO Act creates a private right of action for employees to bring claims for injunctive relief against their employers for failing to comply with applicable workplace health and safety standards. Courts may award up to $20,000 in damages and attorneys' fees to a prevailing plaintiff under the HERO Act, 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.

Anti-Retaliation Provisions; Refusals to Work

The HERO Act prohibits an employer from discriminating, threatening, retaliating against, or taking adverse action against any employee for:

• Exercising their rights under the HERO Act or under a workplace health and safety plan;
• Reporting violations of the HERO Act or an applicable workplace health and safety plan;
• Reporting a workplace health and safety concern or seeking assistance or intervention with respect to airborne infectious disease exposure concerns; or
• Refusing to work where such employee reasonably believes, in good faith, that such work exposes them, other employees, or the public, to an unreasonable risk of exposure to an airborne infectious disease due to working conditions that are inconsistent with the law or workplace health and safety plan.

Joint Labor-Management Workplace Safety Committee

The HERO Act requires employers with at least 10 employees to permit employees to establish and administer a "joint labor-management workplace safety committee." Committees must be composed of employee and employer designees, provided that at least two-thirds of all committee members are non-supervisory employees. The HERO Act's Joint Labor-Management Workplace Safety Committee provision takes effect 180 days after the Act is signed into law.

Among other things, the committee has authority to:

• Raise health and safety concerns, to which the employer must respond;
• Review any employer policy required by the HERO Act or the New York Workers' Compensation Law and provide feedback;
• Review any workplace policy promulgated in response to any health or safety law;
• Participate in any site visit by a government entity responsible for enforcing health and safety standards;
• Review any employer health and safety report; and
• Regularly schedule a meeting during work hours at least once per quarter.

Committee members must be permitted to attend training associated with their role without loss of pay. Retaliation against committee members is prohibited and punishable by a civil fine of up to $10,000. Committee members who believe that they have suffered retaliation may also assert claims in court, and may recover liquidated damages and attorneys' fees.

Employer Action Items

Once Governor Cuomo signs the Act, the NYDOL has 30 days to create new workplace health and safety standards. Employers should begin by reviewing any existing COVID-19 prevention plans they have in place and be prepared to make any changes in accordance with NYDOL standards as soon as they are adopted.
Employers must, however, continue to comply with existing state and local reopening guidelines, as well as applicable Occupational Safety and Health Administration requirements.

Employers should also make a plan to implement, post, and distribute adopted workplace health and safety plans, and provide managers with both compliance and anti-retaliation training.

Finally, employers with at least 10 employees should prepare to implement a joint labor-management workplace safety committee that will receive information concerning workplace health and safety. Employers are advised to consult with counsel experienced in traditional labor law regarding National Labor Relations Act restrictions on the functions of an advisory committee that includes employee designees.

Employers are encouraged to consult counsel with any questions regarding the HERO Act.

FOOTNOTES

1  If the employee identifies a primary language for which a model document is not available, Employers comply by providing that employee with an English-language plan.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

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