On May 5, 2021, and in response to the on-going COVID-19 pandemic, New York Governor Andrew Cuomo signed into law the New York Health and Essential Rights Act, or NY HERO Act. This new law imposes workplace safety requirements intended to prevent the spread of airborne infectious diseases such as COVID-19 and influenza. Specifically, it requires that employers implement a workplace health and safety to reduce the spread of disease; one that meets or exceeds the standards being implemented by the NYS Commissioner of Labor and NYS Department of Health. Employers must also create a joint labor-management workplace safety committee to inter alia facilitate the raising by employees of health and safety concerns to the company.
Unlike most pandemic-inspired laws and rules that have been enacted during the course of the past year and a half, this law is a permanent one; reportedly the first such permanent law in the nation. For many pandemic-weary businesses struggling to keep their doors open, the need to comply with yet another new and complex workplace regulation will no doubt be unwelcome news. However, the key to reopening businesses and getting back to some semblance of pre-pandemic life is reducing the spread of COVID-19, and for better or worse this law is intended to do just that. Let’s take a closer look at the NY HERO Act and its requirements.
Health and Safety Plan Requirement
The first part of the Act requires that the Department of Labor and Department of Health create industry-specific model workplace health and safety plans. These model plans are scheduled to be posted on the DOL’s website within the next few weeks in multiple languages. Employers may either choose to adopt a model plan appropriate for their business, or they may adopt their own plan provided it meets or exceeds NYS standards. To be compliant, a must cover the following: (a) employee health screenings; (b) face coverings; (c) required personal protective equipment; (d) hand hygiene; (e) regular cleaning and disinfecting; (f) social distancing; (g) compliance with mandatory/precautionary orders of isolation/quarantine; (h) compliance with applicable engineering controls (e.g., ventilation); (i) designation of one or more supervisory employees to enforce compliance; and (j) verbal review of health and safety standards. Once a plan has been adopted, employers must post it in the workplace, add it to their employment manuals (if the company maintains a manual), and distribute copies of the plan to all employees in English, as well as the employee’s primary language if it is not English.
Penalties for failure to adopt a prevention plan start at $50 per day, while those for failing to comply with an adopted plan range from $1,000 to $10,000. Penalties for repeat violations within a six-year period are substantially higher. On top of these penalties, if an employer fails to comply, aggrieved employees may seek injunctive relief through a civil action and, if successful, recover their attorneys’ fees. Employees may also recover liquidated damages of up to $20,000, unless the employer establishes a good faith basis for having believed that its health and safety measures were compliant.
Retaliation is strictly prohibited. More specifically, employers may not retaliate or take adverse action against employees who complain about a workplace health or safety concern, who refuse to work under conditions that the employee reasonably believed to be unsafe, or who otherwise exercise their rights under the Act. Remedies available under the Act to employees who experience unlawful retaliation in response to an exercise of their rights include an award of reinstatement, back pay, liquidated damages, costs and attorneys’ fees.
Joint Labor-Management Workplace Safety Committee
In addition to its requirement that employers adopt a workplace health and safety plan, the Act also requires that employers with at least 10 employees establish a “joint labor-management workplace safety committee,” two-thirds of which must be comprised of non-supervisory employees. The committee, which must be in place on or before November 1, 2021, is empowered to: (1) raise health and safety issues to the employer; (2) review and provide feedback on health and safety policies; (3) review workplace policies put in place in response to laws and/or executive orders; (4) participate in any government workplace site visits; (5) review employer health and safety reports; and (6) meet at least quarterly during working hours, and without any loss of pay. Civil penalties of up to $10,000 may be imposed against employers who retaliate against committee members. Aggrieved committee members may also obtain liquidated damages and attorneys’ fees in court.
The NY Hero Act goes into effect on June 4, 2021, and while the model plans are not yet available, the minimum requirements of what a plan must contain are known. Accordingly, employers should use the next few weeks to evaluate their workplaces and any existing COVID-19 policies and protocols they may have in preparation for the effective date of the Act. Among other things, employers must make all supervisory personnel aware of the Act, its requirements, and its anti-retaliation provisions, and they should designate one or more supervisors to monitor compliance (e.g. social distancing, mask wearing). Ventilation within the workplace should be evaluated and if necessary increased, and distancing should be optimized to the extent practical. This includes moving work stations apart where space permits, relocating employees so they are further apart, and erecting Plexiglas or other barriers where necessary. Plans should be made to regularly clean and disinfect everything employees touch, and to ensure hand hygiene supplies such as sanitizer, soap and paper towels are always available. For those employers with 10 or more employees, thought should be given to forming the required workplace safety committee on or before the fall deadline for doing so.
As always, if you have questions about new laws or legislation such as the NY Hero Act, we encourage you to discuss them with your attorneys.