As the pandemic continues on, New Yorkers may not be surprised to learn that a new law has been passed addressing safety in the workplace in connection with COVID-19 as well as future airborne infectious disease outbreaks.

Governor Cuomo officially signed the New York Health and Essential Rights Act (HERO) into law on May 5, 2021. The legislation amends the New York Labor Law by adding two new sections governing (1) the development and adoption of a workplace prevention policy for airborne infectious diseases, and (2) the creation of workplace safety committees.

What You Need to Know about Airborne Disease Prevention Plans

The NY Hero Act requires the New York State Department of Labor (NYSDOL) to develop minimum standards for private sector employers to follow to help prevent the spread of airborne infectious diseases, such as COVID-19, in the workplace. These standards may differ among industries but will include elements familiar to employers who have already reopened: face coverings, employee health screenings, cleaning protocols, social distancing, and the like. The DOL has until June 4, 2021 to issue the standards. Employers do not have to adopt the NYSDOL’s industry-specific prevention plan models, but if they choose to create their own, the plans must meet or exceed the NYSDOL minimum requirements and be created with employee participation (for non-unionized workers). Most employers will also be required to provide notice of their prevention plan by June 4, as well as post it in a prominent location in the workplace, provide it to all employees upon reopening after a period of closure due to airborne infectious disease, provide it upon hire, and distribute it in the employee’s primary language if other than English (provided there is a model policy developed in that specific language).

Although Governor Cuomo signed the current version of the Act, he also stated that he had been in talks with legislators to amend the law to ease the burden on employers, giving them time to immediately cure violations, limiting litigation to situations in which employers act in bad faith, and to provide more time for the DOL and employers to enact the new standards. Violations of the law could result in monetary penalties.

What You Need to Know about Workplace Safety Committees

Effective November 1, 2021 for private sector employers with 10 or more employees[1] or an annual payroll over $800,000 and a workers compensation experience modification of more than 1.2, another provision of the HERO Act provides protections for employees who would like to form a workplace safety committee or report a health and safety plan violation. The law sets standards and requirements for committees like this and includes an anti-retaliation provision for employees. This will allow employees to engage in committee activities without fear of retaliation. Additionally, if an employer fails to comply with NYSDOL standards, employees may bring a claim against their employer for failing to follow NYS Labor Law.

What Do Employers Need to Do Now?

While the DOL model prevention plans are not yet available, employers should begin reviewing their policies and preparing for the upcoming compliance deadlines on June 4 and November 1. For guidance on the NY Hero Act minimum standards and adopting your own prevention plan, please contact us.

On June 11, Governor Cuomo signed legislation amending the New York State HERO Act in three areas:

Prevention Plans:

The amendments extend the deadline for the NYSDOL to publish its model plans to July 5, 2021 instead of the previous deadline of June 4. The updates to the Act also include set deadlines – employers will have 30 days after the DOL publishes the model standards to adopt their own disease prevention plans and 60 days to let employees know about any updated safety protocols.

Workplace Safety Committees:

The HERO Act provided protections for employees of certain private sector employers who wanted to form workplace safety committees. While the original HERO Act did not specify restrictions for workplace safety committees, the updates to the Act allow employers to limit such committees to one per worksite. The Amendments also limit committee meetings during working hours to two hours and committee training to four hours.

Private Causes of Action:

Governor Cuomo has also upheld his statement from our earlier article below in which he proposed to amend the Act to ease the burden on employers. The updates to the Act require employees to provide employers with 30 days’ notice before filing lawsuits and allow the employer time to correct the violation. This means that unless an employer demonstrates an “unwillingness to cure a violation in bad faith,” employees will not be able to bring suit if the employer corrects a violation in time. Lastly, the Amendments remove the Act’s ability to allow for recovery of liquidated damages in a private cause of action.

On July 6, 2021, the New York State Department of Labor, in consultation with the New York State Department of Health, published an Airborne Infectious Disease Exposure Prevention Standard and a Model Airborne Infectious Disease Exposure Prevention Plan.

Also published were 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.

What Now?

Employers now have 30 days to adopt a written exposure plan, either following the NYSDOL’s model plan or creating their own following NYSDOL standards. The plan must be communicated to employees and posted in a visible location.

It’s important to note that while an exposure prevention plan is required to be adopted and posted, it is not required to be in effect until the New York State Commissioner of Health designates an airborne infectious disease.

[1] The Act defines employees to include individuals such as part-time workers, independent contractors, domestic workers, home health and personal care workers, and seasonal workers.