This post was revised on May 19, 2021 to reflect relevant updates.
On May 5, 2021, New York enacted the Health and Essential Rights Act (the “HERO Act”). The new law seeks to address continued COVID-19 safety concerns in the workplace and is designed to codify, supplement, and replace numerous executive actions that have been issued throughout the pandemic. The passage of the HERO Act imposes significant new health and safety obligations on New York employers, including the formation of joint labor-management workplace safety committees to help ensure worker safety. Employers should prepare now to come into compliance with the new law, which we summarize below.
The NYSDOL Will Develop New Health and Safety Standards.
The HERO Act requires the New York State Department of Labor (“NYSDOL”) to issue industry-specific enforceable minimum workplace health and safety standards for preventing exposure to airborne infectious diseases by June 4, 2021. The list of topics that the NYSDOL must address in its standards is lengthy and includes rules regarding face coverings and personal protective equipment, health screening measures, hand hygiene, cleaning and disinfecting, social distancing measures, and compliance with mandatory or precautionary orders of quarantine following COVID-19 exposure. New York employers who have begun reopening workspaces will be familiar with these topics given that they largely track with the current reopening guidelines developed by New York State. It remains to be seen how (or if) the NYSDOL standards will reflect New York’s recent adoption of CDC guidance allowing fully vaccinated individuals to remove face masks and not socially distance in various settings, including offices.
After the NYSDOL Issues its Minimum Standards, Employers Must Develop and Implement Safety Plans.
Once the NYSDOL standards are issued, New York employers of all sizes will be required to: (i) develop and implement a health and safety plan that complies with or exceeds the NYSDOL standards; (ii) post the health and safety plan in the work site; and (iii) distribute the plan to all employees (broadly defined to include contractors, temporary workers, etc.) within employer work sites. Upon reopening from a COVID-19/pandemic closure or upon hiring, employers must provide the written airborne infectious disease exposure prevention plan to its employees, both in English and in any language identified by employees as the primary language of such employees.
Employers Are Required to Permit Workers to Establish Joint Labor-Management Workplace Safety Committees
Completely separate from the measures the state has imposed on employers to date, the HERO Act also requires employers to permit workers to establish and administer a “joint labor-management workplace safety committee.” This requirement will apply to all employers with 10 or more employees and will become effective November 1, 2021. These joint labor-management workplace safety committees are authorized to: (i) raise work site health and safety concerns, to which the employer must respond; (ii) review and provide feedback on all employer policies required by the HERO Act or by the New York Workers’ Compensation Law; (iii) review and provide feedback on all workplace policies promulgated in response to any health or safety law; (iv) participate in any work site visit by a government entity responsible for enforcing health and safety standards; (v) review and provide feedback on any employer health and safety report; and (vi) regularly schedule a meeting during work hours at least quarterly. The HERO Act states that at least 2/3 of the membership of any committee must consist of non-supervisory employees and must be co-chaired by both an employer representative and a non-supervisory employee.
Enforcement and Retaliation Provisions
If an employer fails to adopt a health and safety plan, it may be subject to a penalty of at least $50 per day until the employer implements such a plan. An employer who fails to comply with its adopted plan’s health and safety measures can be subject to a civil fine ranging from $1,000 to $10,000.
In addition to fines, the HERO Act creates a private right of action for employees. If an employer fails to comply with promulgated NYSDOL health and safety standards, employees may bring a claim for injunctive relief against their employer. The HERO Act allows courts adjudicating such claims to award up to $20,000 in liquidated damages and attorneys’ fees to a prevailing employee, unless the employer demonstrates a good faith basis for its belief that the employer’s health and safety measures were in compliance with the applicable NYSDOL standard.
The HERO Act also prohibits retaliation against workers (i) who report a health and safety plan violation or airborne infectious disease concern; (ii) who participate in joint labor-management workplace safety committees; and/or (iii) who refuse to work due to their reasonable belief that the work site exposes them to health and safety risks that are inconsistent with the laws, rules, policies, orders of any governmental entity, including the NYSDOL standards. Employees raising a retaliation claim based on this last principle bear the responsibility of first notifying the employer of the work site risk or condition, which allows the employer to cure the conditions, unless the employer “had or should have had reason to know about the [at-issue] working condition and maintained the [at-issue] working condition.”
Although the law has already been enacted, Governor Cuomo indicated that he had reached an agreement with the Legislature to amend the law in certain ways that might benefit businesses grappling with these changes. Particularly, amendments may be forthcoming that would: (i) provide employers a meaningful opportunity to cure potential violations raised by employees; (ii) provide specific instructions and timelines for NYSDOL to enact safety standards; and (iii) restrict the private right of action to only cover situations where employers are acting in bad faith and failing to cure deficiencies. These potential amendments may ease employers’ compliance burdens, but have yet to materialize.
We will be tracking the forthcoming NYSDOL standards and potential amendments to the law closely. For now, New York employers should await distribution of these standards and, upon their announcement, gather all stakeholders necessary to review the employer’s COVID-19 safety mechanisms, come into compliance with the forthcoming industry standards relevant to the employer, formulate and implement a compliant health and safety plan, begin preparing to accommodate a joint labor-management workplace safety committee in line with the new law, and ensure effective distribution and implementation of such plan.