New York HERO Act now in effect; NYDOL releases model standards

This new law imposed additional workplace health and safety requirements on New York employers (you can read our original post here, but the below version outlines the latest on the law).

When Governor Cuomo signed the New York Health and Essential Rights Act (NY HERO Act) on May 5,  there was an understanding between the governor and the legislature that it would be amended to address concerns from the business community.

Those amendments passed the legislature and changed several provisions of the original law. We have included those changes below.

NOTE: On July 6, the New York State Department of Labor (NYSDOL) published model plan standards and templates, which can simply be adopted by employers rather than employers creating their own custom plan. But, the NYSDOL also noted that the plans need only be in effect "when an airborne infectious disease is designated by the New York State Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health."

Since there is no such infectious disease designation in New York at this time, the plans only need to be implemented by employers - they are not required to be active or "in effect."

 

Effective dates

The law was scheduled to take effect June 4, 2021; however, it is now effective as of 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, which they did on July 6. Click here for The Airborne Infectious Disease Exposure Prevention Standard. These minimum requirements 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.

Employers have within 30 days after the [NYS DOL] publishes the model general standard and the model standard relevant to the industry to implement this plan.

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.

 

Definition of employee and worksite

The definition of a covered “employee” includes individuals working for digital applications or platforms. The definition of “worksite” has been revised to narrow locations where work is performed to those locations “over which an employer has the ability to exercise control.” Specific to telecommuting or teleworking sites, the obligation for employers to ensure safety measures during an outbreak does not attach to these sites unless the employer has the ability to exercise control over such sites.

 

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.

But, employees must provide the employer with 30 days notice before commencing civil suit, and can only continue legal action against the employer if the employer has refused to "cure" the violation.

 

Workplace safety committees

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 given the ability to take legal action against their employer for related violations, however they must follow certain procedural requirements and give the employer an opportunity to cure the violation. Employees must provide the employer with 30 days’ notice before commencing civil suit, and can only continue legal action against the employer if the employer has refused to "cure" the violation in bad faith. Employees must file a civil action under the law within 6 months from the date that the employee first had knowledge of the violation giving rise to the suit.

 

Action items for New York employers

  • Review – and potentially update – your existing workplace safety plan, and ensure it is prominently displayed in each worksite.
  • 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.

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