NY HERO Act
On May 5, 2021, Governor Andrew Cuomo signed the New York Health and Essential Rights Act (HERO Act) into law. It mandates extensive new workplace health and safety
protections in response to the COVID-19 pandemic. The law is designed to protect employees against exposure and disease during any future airborne infectious disease outbreak.
The HERO Act applies to all nongovernmental employers in New York and protects all employees, including part-time workers, independent contractors, individuals working for staffing agencies, and individuals making deliveries to a work site. A “work site” is any physical space, including a vehicle, and employer-provided housing, subject to certain exceptions.
The HERO Act added two new sections to New York’s Labor Law that require employers to (1) establish an exposure prevention plan for airborne infectious diseases; and (2) allow employees to form “workplace safety committees.”
Exposure Prevention Plan
The NYS Department of Labor, in consultation with the NYS Department of Health, has developed an Airborne Infectious Disease Exposure Prevention Standard and model prevention plans designed to prevent airborne infectious diseases.
The model plans include a “general” template and 11 industry-specific templates for agriculture; construction; delivery services; domestic workers; emergency response; food services; manufacturing and industry; personal services; private education; private transportation; and retail.
The model plans address stay at home policies, respiratory etiquette, and special accommodations for individuals with added risk factors. They also require employers to determine if certain “advanced controls” are necessary, including: (1) the elimination of risky activities where adequate controls would not provide sufficient protection; (2) engineering controls (e.g., ventilation, disinfection, physical barriers); (3) administrative controls (e.g., training, signage, establishing pods, or cohorts, etc.); and (4) the provision of additional personal protective equipment.
Employers can adopt an applicable model plan or establish their own alternative plan that meets or exceeds the standard’s minimum requirements. If an employer chooses to adopt an alternative plan, they must develop it in consultation with union representatives (if applicable) or obtain “meaningful input” from employees on “all aspects” of the plan. The prevention plan must include industry-specific considerations, consider the types of risks at the worksite, and consider the presence of third parties.
Plans must be adopted by August 5, 2021. Within 30 days after adopting its plan, the employer must distribute the plan to all employees and independent contractors. The employer must also give the plan to new employees and contractors when hired, include it in their employee handbook (if they have one), and post it “in a visible and prominent location within each worksite.”
The plan must be provided to employees in English and in the individual employee’s primary language, if available. The model plan is currently only available in English, but will be available in Spanish soon.
Employers must also conduct a “verbal review” of its policies and exposure prevention plan and the employees’ rights under the HERO Act.
A prevention plan only goes into effect when the NYS Commissioner of Health designates an airborne infectious disease as a “highly contagious communicable disease that presents a serious risk of harm to the public health.”
Workplace Safety Committees
As of November 1, 2021, the HERO Act requires employers with at least 10 employees to establish and administer a joint labor-management workplace safety committee. Employees must count all individuals employed within New York State, including part-time, temporary, and seasonal employees and those on paid or unpaid leave if there is a reasonable expectation and the employee will return to active employment.
At least two-thirds of the committee must be non-supervisory employees. Committees can raise health and safety concerns; review safety policies; participate in certain site visits; and regularly schedule meetings during work hours.
On December 22, 2021, the New York State Department of Labor issued a Notice of Proposed Rulemaking regarding the Act’s workplace safety committee requirements. The proposed regulations are subject to a notice and comment period and NYSDOL will hold a public hearing regarding the proposal on February 9, 2022. Thereafter, NYSDOL may issue a final rule.
It is illegal for an employer to take any adverse action against an employee for:
- Exercising their rights under the Act or the employer’s plan;
- Reporting violations of the Act or an employer’s plan when the employee has a good faith, reasonable belief that a violation occurred;
- Reporting an airborne infectious disease concern to their employer or a governmental entity, officer, or official; or
- Refusing to work when the employee has a good faith, reasonable belief that doing so is unreasonably risky due to working conditions that are inconsistent with the model standard; provided, however, that the employee, another employee, or an employee representative notified the employer of the unsafe working condition and the employer failed to cure the conditions, or the employer had or should have had reason to know about the unsafe working conditions.
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