Earlier this year, New York Governor Andrew Cuomo signed into law the New York Health and Essential Rights Act (“HERO Act” or the “Act”). The HERO Act requires employers to implement safety standards to prevent occupational exposure to an airborne infectious disease. The HERO Act aims to reduce workplace transmission and community spread through enforceable health and safety standards.  Certain provisions of the Act went into effect on June 4, 2021.

Who is Covered?

The HERO Act covers all private-sector employers in New York State. “Employees” covered by the HERO Act include any person providing labor or services for remuneration including, but not limited to, part-time workers, independent contractors, domestic workers, home care and personal care workers, day laborers, farmworkers, and other temporary and seasonable workers.

What is Required?

Under the NY HERO Act, employers must either:

adopt the New York State Department of Labor’s (“NYS DOL”) model prevention plan;
or develop and establish an alternative prevention plan that equals or exceeds the requirements in the NYS DOL’s model plan.

In addition to the model plan, the NYS DOL created several industry-specific prevention plans for the following industries: agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail.

The model plan sets forth the minimum requirements employers must provide to prevent exposure to airborne infectious diseases in the workplace and establishes requirements for:

employee health screenings;
employee face coverings;
personal protective equipment;
workplace hand hygiene stations and protocols, which includes adequate break times for employees to wash their hands;
cleaning and disinfecting shared equipment and frequently touched surfaces and high-risk areas;
social distancing;
complying with mandatory or precautionary orders of isolation or quarantine issued to employees;
air flow, exhaust ventilation, or other special design requirements;
designation of one or more supervisors with the responsibility to ensure compliance with the prevention plan and any applicable federal, state, or local laws, rules, or guidance on preventing the spread of an airborne infectious disease;
notice to employees; and
verbal review of the infectious disease standard, employer policies, and employee rights under the NY HERO Act.

Employers had until September 4th, 2021, to adopt and distribute their prevention plan to employees.  Once adopted, like many company policies, the prevention plan must be posted in a visible and prominent place within the worksite, included in the employee handbook, and provided to new employees upon hire.

However, there is one important caveat, which is that even though employers are required to adopt and distribute a prevention plan, the plan only goes into effect “when an airborne infectious disease is designated by the New York State Commissioner of Health Commissioner as a highly contagious communicable disease that presents a serious risk of harm to the public health.”

Currently, the Commissioner has made no such designation, and prevention plans are not required to be in effect.

Anti-discrimination/retaliation

Employers are prohibited from discriminating or retaliating against any employee for exercising rights granted by the NY HERO Act. Employers cannot take any adverse employment action against any employee for reporting violations of the law or prevention plan; reporting concerns about exposure to airborne infectious diseases; or refusing to work under limited circumstances where the employee reasonably believes in good faith that such work exposes the employee or others to an unreasonable risk of exposure to an airborne infectious disease due to working conditions that are inconsistent with the NY HERO Act.

Workplace safety committees

In addition, under the Act, on November 1st, 2021, employers with at least 10 employees will be required to permit their employees to establish a joint labor-management workplace safety committee. The committee will be composed of employee and employer designees.  The committee must be permitted to raise workplace health and safety concerns, review employer policies related to occupational safety and health, and participate in site visits by a government entity. The committee will be entitled to meet on a quarterly basis during work hours for up to two hours. Finally, employers must permit the designees to attend a training, regarding worker safety committees and occupational safety and health, without suffering a loss of pay,

Penalties and cure period

Employers who fail to adopt a prevention plan may be assessed a civil penalty of not less than $50.00 per day. If employers fail to abide by their written prevention plan, the Commissioner may also assess a penalty against employers.  Penalties are increased if an employer violates the NY HERO Act more than once in the preceding six years.

Employer takeaway

New York private employers should promptly develop and distribute a prevention plan and remain up to date on airborne infectious disease outbreak designations.