Knowledge

New York Enacts HERO Act: Imposing Significant Requirements on Employers

May 7, 2021

Christopher P. Maugans Caroline J. Berdzik

Key Takeaways:

New York private sector employers must adopt an airborne infectious disease prevention plan
Certain New York private sector employees are required to permit employees to establish a joint labor-management workplace safety committee

On May 5, 2021, Gov. Andrew Cuomo signed Assembly Bill A2681B, which has been coined as the New York HERO Act. The HERO Act imposes major requirements on certain employers. First, it creates New York Labor Law § 218-b, which includes a requirement for employers to adopt an airborne infectious disease plan. Second, it creates New York Labor Law § 27-d, which requires employers to permit the creation of joint employer-employee workplace health and safety committees.

According to the sponsors of the HERO Act, there is no federal or state law protecting workers from exposure to airborne infectious diseases in the workplace. Indeed, the COVID-19 pandemic resulted in numerous, and what is now more than 100 executive orders, some of which include requirements relating to operating a business. There is no doubt that employers will remember the state mandated requirement to adopt safety plans based on industry specific guidance to reopen in summer 2020, after all non-essential businesses were shut down in spring 2020. The HERO Act requires employers to have plans in place for future pandemics.

Employers Now Required to Adopt an Airborne Infectious Disease Prevention Plan

Covered employers must either adopt their own prevention plan, or adopt a model standard plan that will be created by the Department of Labor (DOL) in conjunction with the Department of Health. The prevention plan must include industry-specific considerations, consider the types of risks at the worksite, as well as the presence of third parties. The plan will include at least the following items:

Employee health screenings
Face coverings
Required personal protective equipment (PPE)
Accessible workplace hand hygiene stations
Adequate breaks for workers to use hand hygiene stations as needed
Regular cleaning and disinfecting of shared equipment and frequently touched surfaces
Effective social distancing for employees and customers, including sign postage; limiting capacity; delivering services remotely or curbside; flexible meeting and travel options; and staggered shifts
Compliance with mandatory or precautionary orders of isolation or quarantine
Compliance with applicable engineering controls such as proper air flow and exhaust ventilation
Designation of one or more supervisory employees to enforce compliance with the prevention plan
Compliance with any applicable laws, rules, regulations, standards, or guidance on notification to employees and relevant local agencies of potential exposure
Verbal review of infectious disease standards, employer policies, and employee rights
An anti-retaliation provisions

After the initial model plan is created, it may be modified in the future upon notice to employers. Employers that wish to create their own plan must adopt a plan that equals or exceeds the minimum standards provided in the model plan. If an employer chooses to create an alternative prevention plan to the model plan, it must be developed in consultation with union representatives if they exist, and in nonunion workforces, there must “meaningful participation of employees.”

Definitions

The HERO Act defines numerous terms, including employee, worksite, supervisor, supervisory employee, employer, and airborne infectious disease.

These definitions warrant a careful review given their expansive scope. By way of example only, “employee” includes independent contractors, part-time workers, domestic workers, home care and personal care workers, day laborers, farmworkers, temporary and seasonal workers, individuals working for staffing agencies, contractors, subcontractors, and individuals delivering goods or transporting people at, to, or from the worksite on behalf of the employer.

Another notable definition is a “worksite,” which includes any location where work is performed, including a vehicle. A residence is not included, unless the residence is provided to the employee by the employer and is used as the primary place of work.

The HERO Act covers all private sector employers (seemingly with no regard for number of employees, industry, or annual revenue) and expressly excludes public sector employers. However, public sector employers should refer to Senate Bill S8617B, which was signed in fall 2020, creating New York Labor Law § 27-c, amending New York Labor Law § 27-1, and adding a new provision to Education Law § 2801-a. That law requires public sector employers to similarly develop operational plans in the event of certain declared public health emergencies, among other things.

Required Notice and Posting

The prevention plan must be posted in a visible and prominent location within the worksite. Additionally, if an employer provides employees with an employee handbook, the plan must also be in it. The prevention plan must also be made available upon request from many stakeholders, including employees, independent contractors, collective bargaining representatives, the commissioner of labor, and the commissioner of public health.

Employers must provide a copy of the prevention plan to employees on the effective date of the HERO Act, upon reopening after a period of closure due to an airborne infectious disease and upon hire. The prevention plan must be provided in English and in the language identified by the employee as the primary language.

Unionized Workforces

The HERO Act also includes the New York employment law staple phrase: the law cannot be deemed to diminish the rights, privileges, or remedies of an employee covered by a collective bargaining agreement.

Collective bargaining agreements may waive the requirements under the HERO Act if the law is expressly referenced.

No Discrimination/Retaliation, Enforcement, Penalties, and Baseless Claims

As with almost every law in New York relating to employees, the HERO Act expressly prohibits discrimination or retaliation against employees. The specific protected activity listed in the law includes the following activitie relating to infectious disease exposure:

Exercising rights under the prevention plan
Reporting violations to any government agency
Reporting concerns or seeking assistance from their employer or a government agency
Refusing to work where the employee reasonably believes, in good faith, that such work exposes him, her, other workers, or the public to an unreasonable risk of exposure to an airborne infectious disease due to working conditions that are inconsistent with the law and prevention plan. Notably, the employer must first be notified about the purported issues and be given a chance to cure it, unless the employer had or should have had reason to know about it already.

During the COVID-19 pandemic some employees filed complaints with government agencies and/or sued their employer in court under a whistleblower theory. The HERO Act expressly provides the avenue for employees to avail themselves.

Employees may bring civil actions seeking injunctive relief for violations of the prevention plan in a manner that creates a substantial probability that death or serious harm could result from a condition which exists, or from one or more employer practices, methods, or processes, unless the employer did not or could not have known about it with the exercise of reasonable diligence. In such actions, the court is free to award costs and attorney’s fees. Employers could also be on the hook for liquidated damages of $20,000 or less, unless the employer can establish a good faith basis for its conduct.

In what is undoubtedly an attempt to limit frivolous claims and make employers and employees think twice, any action, defense, counterclaim, or cross-claim that is found to be completely without merit, is meant to harass, or maliciously injury, could result in sanctions against the attorney or party who made such claim. The imposition of sanctions is discretionary.

The HERO Act also imposes hefty fines for employers that are determined to be noncompliant after an investigation by the DOL. By way of example, employers that fail to adopt a prevent plan may be fined for no less than $50 per day. Failure to abide by the prevention plan could result in penalties ranging from $1,000 to $10,000. Any repeat offenders will risk even higher fines. Employers with violations within the last six years will see the above mentioned thresholds raised for future violations to $200 per day and between $1,000 to $20,000. The DOL is also empowered to order injunctive relief.

Employers Required to Permit Workplace Safety Committees

The second section of the HERO Act requires certain employers to allow employees to establish a joint labor-management workplace safety committee. This law only covers private sector employers with 10 or more employees.

The committee creation and process for selection must adhere to the following rules:

It must have employee and employer designees
At least two thirds must be non-supervisory employees
Employee members of the committee must be selected by nonsupervisory employees
Committees will be co-chaired by a representative of the employer and non-supervisory employees
In unionized environments, the collective bargaining representative will be responsible for the section of employee to serve on the committee
Committees representing geographically distinct worksites may also be formed if necessary
Employers cannot interfere with the selection of employees

The workplace safety committee and workplace safety designee are authorized to do the following:

Raise health and safety concerns, hazards, complaints, and violation to the employer (who must respond)
Review any policy put in place in the workplace required by the HERO Act or workers compensation law and provide feedback
Review the adoption of any policy in the workplace in response to any health or safety law, ordinance, rule, regulation, executive order, or other related directive
Participate in any site visit by any governmental entity responsive for enforcing safety
Review any report filed by the employer related to health and safety and workplace safety
Regularly schedule a meeting during work hours at least once a quarter

Employer must also permit safety committee designees to attend training, without loss of pay, on the function of worker safety committees, rights established under the HERO Act, and an introduction to occupational safety and health.

Participating employees may not be discriminated against or retaliated against. Moreover, these committees cannot be deemed to diminish the rights, privileges, or remedies of an employee covered by a collective bargaining agreement, but can also be waived. Finally, the law indicates that rules and regulations are forthcoming.

Many questions remain relating to these committees, including, but not limited to, how many people will serve on them, how long can people serve on them, and how many people need to want the committee for it to be formed in the first place.

Employer Actions

The section of the HERO Act relating to the safety plan takes effect June 4, 2021, 30 days after it became law, and the safety committee section of the law takes effect on November 1, 2021, 180 days after it became law. The law also states that the commissioner of labor and commissioner of health will adopt and amend rules and regulations effectuating the HERO Act.

However, notably, in a memorandum signed by Gov. Cuomo on May 5, 2021 in relation to the HERO Act, he states:

I have secured an agreement with the Legislature to make technical changes to the bill, including giving the department of labor and employers more specific instructions in development and implementing the workplace standards, including a clear timeline, and providing for an immediate requirement for employers to cure violations in order to better protect the safety of workers, and limit court litigation in those private rights of action, in limited circumstances where employers are acting in bad faith and failing to cure deficiencies.

Therefore, the effective dates could be pushed out further. Additionally, and as it relates to the safety plans, employers will not need to adopt a plan until the model plans are developed, which will likely take a fairly long time. However, employers should start considering how to comply with the HERO Act now, and keep a lookout for updates.

For more information or immediate guidance, contact: