On May 5, Governor Cuomo signed the New York Health and Essential Rights Act (NY HERO Act). This new law imposes additional workplace health and safety requirements on New York employers and coincides with New York’s May 19 adoption of CDC guidance allowing for office capacity in that state to increase from 50% to 75%.
While the law as written sounds burdensome, employers should be aware that it was signed with an understanding between the governor and the legislature that it would be amended to address concerns from the business community. As such, several amendments currently in the legislative process would significantly alleviate the law’s more onerous provisions. We have noted these amendments in italics within each applicable section.
The law is scheduled to take effect June 4, 2021. However, an amendment pushes the effective date to July 5, 2021.
“Airborne infectious disease exposure prevention plan” and model standard
One of the main components of the law is the requirement that employers create a written “Airborne infectious disease exposure prevention plan” comprising workplace health and safety standards. The New York State Department of Labor (NYS DOL) is also required to publish a model standard outlining minimum requirements. These minimum requirements would address the following, with consideration of industry differences:
- Health screenings
- Face coverings
- Workplace hygiene stations
- Social distancing
Importantly, employers can simply adopt the NYS DOL’s model standard for their industry rather than creating their own custom plan. A custom plan would need to meet or exceed the plan put forward by the NYS DOL.
The law as currently written suggests that employers must immediately implement such a plan. However, an amendment provides a time frame of “within 30 days after the [NYS DOL] publishes the model general standard and the model standard relevant to the industry.”
The plan must be posted in a visible and prominent location, and employees must be provided a written copy once the policy is adopted, as well as a copy following reopening after a related closure. New employees must also be provided a copy upon hire.
An amendment allows the employer more time to provide written notice: within 30 days following adoption of the policy and within 15 days following reopening after a related closure. Further, the amendment clarifies that the policy need not be posted in a vehicle that would otherwise qualify as a work site.
Employer retaliation prohibitions and penalties / fines
Employers can face significant penalties of up to $50.00 per day for failure to adopt a plan, and fines of $1,000.00 – $10,000.00 for failing to follow an adopted plan.
The law also prohibits employers from discriminating or retaliating against employees who report violations of the law or adopted plan, report concerns about exposure, or refuse to work based on a reasonable good-faith belief that working conditions pose risk of exposure. Employees are also given the ability to take legal action against their employer for related violations.
However, the amendments limit legal action by employees by noting that the violation by the employer must put the employee at risk of “death or serious physical harm,” for the employee to take legal action. Further, the employer is given a 30-day window to address potential violations; if the violation is “cured” during this time, the employee can no longer take legal action.
Workplace safety committees
Unlike other provisions of the law, this specific requirement takes effect November 1. It requires private New York employers with 10 or more employees to allow their employees to establish joint employer-employee “workplace safety committees.” These committees must be made up of “non-supervisory employees,” with the power to:
- Bring health and safety concerns to the employer’s attention
- Review related workplace policies
- Participate in site visits from a government entity
- Attend workplace health and safety standards training
The members of the committee must be selected by “non-supervisory employees,” and employers cannot interfere with the selection process nor retaliate against employees for participating. In workplaces with a collective bargaining agreement in place, the employee representative is responsible for selection of workplace safety committee members.
Amendments to the workplace safety committee requirement:
- If employers already have a safety committee in place that is consistent with the new law’s requirements, then employers are not required to permit the formation of an additional (redundant) committee.
- The committee’s purview is broad in the law; an amendment limits the committee’s purview to only “provisions of the [NY HERO Act] relating to occupational safety and health.”
- The law allows workplace safety committees to meet during work hours at least once per quarter; however, an amendment stipulates that such meetings cannot be longer than two hours. Also, the training that committee members are permitted to attend without loss of pay cannot be longer than four hours.
Action items for New York employers
- Review – and potentially update – your existing workplace safety plan, and ensure it is prominently displayed in each work site.
- Distribute your existing workplace safety plan and highlight the necessity of compliance in light of new regulations.
- Notify ownership, managers, and human resources about requirements of the upcoming NY HERO Act.
- Monitor guidance and/or publishing of model standards by NYS DOL.
Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.