The New York Health and Essential Rights Act (HERO Act) was signed into law by Governor Andrew Cuomo on May 5, 2021. The HERO Act added two new sections to the New York Labor Law: Section 218-b, requiring all private employers to adopt airborne infectious disease prevention plans and standards; and Section 27-D, requiring private employers with 10 or more employees to allow the creation and administration of joint labor-management workforce safety committees. Governor Cuomo approved clarifying amendments (the Amendments) to the HERO Act on June 14, 2021. The HERO Act and its Amendments impose significant workplace health and safety obligations on New York employers.<\/p>\n
On July 6, 2021, the New York State Department of Labor (NYSDOL) released: (i) the NY HERO Act Airborne Infectious Disease Exposure Prevention Standard (\u201cNY Standard\u201d); (ii) the model airborne infectious disease exposure prevention plan (\u201cmodel safety plan\u201d), which is applicable to all employers; and (iii) 11 industry-specific model safety plans contemplated by the HERO Act, including construction, food services, and manufacturing and industrial, among others.<\/p>\n
By August 5, 2021<\/strong><\/span>, all New York employers must<\/span> <\/strong>either: (i) adopt the applicable model safety plan(s) relating to their business or (ii) develop and adopt an alternative safety plan (or plans) that meet or exceed the model safety plans\u2019 requirements. If an employer decides to create a safety plan of its own, employees must meaningfully participate in the drafting of such plan.<\/p>\n At a minimum, safety plans must: (i) specify the worksites and employees that are covered by the plan; (ii) designate supervisory employees to enforce compliance with the safety plan and act as \u201cdesignated contacts;\u201d (iii) establish \u201cMinimum Controls\u201d to be used in all areas of the worksite during an airborne infectious disease outbreak, including a \u201cStay at Home Policy,\u201d health screenings, face covering guidance, physical distancing protocols, and other health and hygiene measures; (iv) establish \u201cAdvanced Controls\u201d for activities where the Minimum Controls alone will not provide sufficient protection for employees, including temporary suspension or elimination of \u201crisky activities,\u201d engineering controls such as ventilation systems, installation of automatic disinfection systems and partitions, or changing the layout of the worksite to avoid points or areas where employees may congregate; (v) identify sanitation procedures that must be followed during an outbreak; (vi) specify actions to be taken in the event an actual or suspected infectious disease case occurs at work, including instructing the sick individual to wear a face covering, leave the worksite, and follow DOH and\/or CDC guidance; and (vi) provide for employee training on the safety plan, including designation of an individual responsible for communicating to employees about the plan.<\/p>\n Employers must provide their employees with a written copy of the safety plan in English and in the employee\u2019s primary language within 30 days of adoption, but no later than September 4, 2021. Employers must also post the safety plan in a visible and prominent location within each worksite. If an employer has an employee handbook, a copy of the safety plan must also be included in the employee handbook.<\/p>\n The NY Standard applies to all private employers with worksites in New York State, with an exception carved out for any employees covered by a temporary or permanent standard adopted by the U.S. Occupational Safety and Health Administration (such as health care workers protected under the Emergency Temporary Standard). The NY Standard applies only to an airborne, infectious agent or disease that is designated by the Commissioner of Health as highly contagious, communicable, and a serious risk of harm to the public health.<\/p>\n If the Commissioner of Health designates a public health emergency based on an airborne infectious disease, an employer will be required to implement the safety plan it has adopted. In such event, the employer must:<\/p>\n Employers may not discriminate, threaten, retaliate against, or take adverse action against any employee for exercising rights under the safety plan, including reporting conduct the employee reasonably believes in good faith violates the safety plan. The retaliation protections also apply to employees refusing to work where they reasonably believe in good faith that such work exposes employees or the public to an unreasonable risk of exposure, if the employer had been notified of the inconsistent working conditions, or if the employer knew or should have known of the consistent working conditions, and the employer failed to cure the risk.<\/p>\n The NYSDOL may investigate violations of Section 218-b and may assess civil penalties of not less than fifty dollars per day for failure to adopt an airborne infectious disease exposure prevention plan, or not less than one thousand dollars nor more than ten thousand dollars for failure to abide by an adopted airborne infectious disease exposure prevention plan.<\/p>\n Section 218-b also creates a limited private right of action to obtain injunctive relief against employers for failing to comply. If successful, courts may grant injunctive relief and award attorneys\u2019 fees and costs, and liquidated damages up to $20,000.<\/p>\n Remedies for retaliation claims may include ordering payments of liquidated damages, costs and reasonable attorneys\u2019 fees to the employee; ordering reinstatement of employees; and awards of back pay.<\/p>\n The HERO Act cautions, however, that frivolous claims may result in \u201csanctions against the attorney or party who brought such action.\u201d<\/p>\n For more information about this Client Advisory, please contact Joseph DeGiuseppe at JDeGiuseppe@bpslaw.com<\/a> or 914-287-6144, or Gina Nicotera at gnicotera@bpslaw.com<\/a> or 914-287-6190.<\/p>\n","protected":false},"excerpt":{"rendered":" The New York Health and Essential Rights Act (HERO Act) was signed into law by Governor Andrew Cuomo on May 5, 2021. The HERO Act added two new sections to the New York Labor Law: Section 218-b, requiring all private employers to adopt airborne infectious disease prevention plans and standards; and Section 27-D, requiring private employers with 10 or more employees to allow the creation and administration of joint labor-management workforce safety committees. Governor Cuomo approved clarifying amendments (the Amendments) to the HERO Act on June 14, 2021. The HERO Act and its Amendments impose significant workplace health and safety obligations on New York employers.<\/p>\n","protected":false},"author":6,"featured_media":3573,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[67],"tags":[],"class_list":["post-3984","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-covid-19"],"acf":[],"yoast_head":"\nImplementation of the Safety Plan<\/h2>\n
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Anti-Retaliation<\/h2>\n
Enforcement<\/h2>\n