In late April, New York State legislators passed a bill that can best be described as a “game changer.” Known as the Health and Essential Rights – or HERO – Act, the bill proposes a novel, sweeping overhaul of the Empire State’s workplace health and safety laws. Among other things, the HERO Act directs New York State Department of Labor (NYSDOL) to create minimum workplace safety standards, requires all New York business to adopt airborne infectious disease exposure plans, and authorizes the creation of joint labor-management workplace safety committees within every company.
The bill now heads to Governor Andrew Cuomo’s desk, where it is expected to be signed in the near term. Below we will outline the key provisions of the HERO Act.
Government-mandated workplace health and safety standards
To start, the HERO Act requires that the NYSDOL create written, industry-specific model airborne infectious disease exposure prevention standards. The standards will set minimum requirements for preventing exposure to airborne infectious diseases in the workplace.
The HERO Act requires that the NYSDOL’s standards establish, at a minimum, requirements with respect to procedures and methods for:
- Employee health screenings
- Face coverings
- Required personal protective equipment applicable to each industry for eyes, face, head, and extremities
- Required protective clothing, respiratory devices, and protective shields and barriers
- Accessible workplace hand hygiene stations and maintaining healthy hand hygiene in the workplace
- Providing adequate break time for employees to use handwashing facilities as needed
- Regular cleaning and disinfecting of shared equipment and frequently touched surfaces (e.g., workstations, touchscreens, phone, handrails, doorknobs, restrooms, dining areas/breakrooms, locker rooms, company vehicles)
- Effective social distancing for employees as well as consumers, customers, and clients
- Compliance with mandatory or precautionary isolation or quarantine orders
- Compliance with applicable engineering controls (e.g., proper air flow, exhaust ventilation)
- Designation of one or more supervisory employees – the HERO Act specifically notes that non-supervisory employees may not bear this responsibility – to enforce compliance with the company’s infectious disease exposure prevention plan (discussed below) and applicable government guidance regarding the same
- Compliance with any applicable laws, rules, regulations, standards, or guidance on notification to employees and relevant state and local agencies of potential exposure to airborne infectious disease at the worksite
- Verbal review with employees of infectious disease standards, employer policies, and employee rights under the HERO Act
The NYSDOL is expected to publish the standards within 30 days following the date on which Governor Cuomo signs the HERO Act into law.
Employer adoption of written airborne infectious disease exposure plans
Once the NYSDOL publishes the written standards, all New York employers – regardless of size, industry, or location – will be required to establish an airborne infectious disease exposure plan. This requirement can be satisfied by adopting the NYSDOL’s model standards (as applicable based on industry) or, instead, adopting an alternative plan that meets or exceeds the NYSDOL’s standards. Notably, the law requires that, if an employer adopts an alternative plan, such plan be developed through meaningful participation from employees (or the employees’ collective bargaining representative if they are unionized).
Once an airborne infectious disease exposure plan is adopted, employers must disseminate a copy of the policy to their workforce – including all full- and part-time employees, independent contractors, workers hired through a staffing agency, and domestic workers – in writing. The policy must be provided to existing employees as of the effective date of the HERO Act and, thereafter, to new hires upon joining.
In addition to written distribution, the airborne infectious disease exposure plan must also be posted in a visible and prominent location with the workplace. Additionally, the policy must be included in the business’s employee handbook/manual. Lastly, employers must make the plan available upon request by any employee, independent contractor, or employee or collective bargaining representative.
Creation of joint labor-management workplace safety committees
One of the most unique aspects of the HERO Act is that it allows Empire State employees to create workplace safety committees. Specifically, the HERO Act requires employers to permit their workers to establish and administer joint labor-management workplace safety committees comprised of employees and management designees (so long as at least two-thirds of the committee members are non-supervisory employees). The employee members of the committee must be selected by, and from among, non-supervisory employees.
The HERO Act further provides that all workplace safety committee members shall be permitted to:
- Raise health and safety concerns, hazards, complaints, and violations to the employer (to which the employer must respond)
- Review any workplace policy or plan that is put into place pursuant to the HERO Act or New York’s workers’ compensation law, or in response to any health or safety law, regulation, order, or other directive
- Participate in any site visit by any government entity responsible for enforcing safety and health standards
- Review any employer-filed report relating to the health and safety of the workplace
- Regularly schedule meetings during work hours (at least once per quarter)
Businesses must also permit workplace safety committee members to attend a training – without losing pay – concerning the function of worker safety committees, employee rights under the HERO Act, and an introduction to occupational safety and health.
Broad anti-retaliation provisions
The HERO Act contains broad anti-retaliation provisions that bar retribution against employees for (1) exercising their rights under the HERO Act or an employer’s airborne infectious disease exposure prevention plan; (2) reporting violations of the HERO Act or an employer’s plan; (3) reporting an airborne infectious disease exposure concern; and/or (4) refusing to work where such employee reasonably believes, in good faith, that such work exposes him to an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with the laws, rules, policies, or orders of any governmental entity, including but not limited to, the NYSDOL’s standards, provided that the employer was notified – or should have had a reason to know – and failed to cure the conditions at issue.
The HERO Act likewise bars retaliation against employees who participate in the establishment or activities of a workplace safety committee “for any actions taken pursuant to their participation.”
Employers that fail to adopt a written airborne infectious disease exposure plan will be subject to civil penalties of at least $50 per day until a plan is implemented. Employers that adopt plans, but fail to comply with their terms, will be subject to penalties of anywhere from $1,000-10,000. Further, if the NYSDOL determines that an employer violated the HERO Act within the preceding six years, then such penalties may increase to $200 per day for failing to adopt a plan and between $1,000-20,000 for failing to adhere to an adopted plan.
Separate and apart from the penalties that the NYSDOL may levy, employees may also commence civil actions for violations of the HERO Act. Plaintiff-employees can seek injunctive and other equitable relief, costs, attorneys’ fees, and liquidated damages (up to $25,000) with respect to the employer’s alleged non-compliance.
We will continue to monitor the HERO Act and, once signed by Governor Cuomo, the promulgation of model plans and regulations contemplated by the HERO Act. If you have any questions about the HERO Act and its implications on your workforce, the Reed Smith Labor and Employment team is ready to speak with you.