On May 5, 2021, Governor Cuomo signed into law the Health and Essential Rights Act (HERO Act), which imposes on all non-public employers significant health and safety standards intended to address the spread of airborne infectious diseases, like COVID-19, in the workplace. The HERO act is touted as the “first-in-the-nation” statute of its kind, apart from the federal Occupational Safety and Health Act (OSH Act), which until now has governed applicable workplace safety standards. It is not clear to what extent the HERO Act would be superseded by the OSH Act, but for now employers must ensure that they comply with its mandates.
Section 1 of the HERO Act takes effect on June 4, 2021, and requires the New York Department of Labor to collaborate with the New York Department of Health, to prepare model airborne exposure prevention standards specific to each industry. Employers are required to either adopt the model standards developed by the State or prepare their own which equal or exceed the State standards.
Section 2 of the HERO Act takes effect on November 2, 2021, and requires employers with ten or more employee to create a “Workplace Safety Committee,” composed of employee and employer representatives, at least two-thirds of whom must be non-supervisory employees. Such committees are to be co-chaired by a representative of the employer and non-supervisory employees. If a collective bargaining agreement exists, the collective bargaining representative is responsible for selecting the employees, who will serve on the committee.
Health and Safety Standards
Section 1 of the HERO Act requires the model standard to address, at a minimum, the following:
- Employee health screenings;
- Face coverings;
- Required personal protective equipment (“PPE”), which shall be provided, used, and maintained in a sanitary and reliable condition at the expense of the employer;
- Handwashing hygiene stations and adequate break times for workers to use handwashing facilities as needed;
- Regular cleaning and disinfecting of shared equipment and frequently touched surfaces such as workstations, touchscreens, telephones, handrails, and doorknobs, and all surfaces and washable items in other high-risk areas such as restrooms, dining areas/breakrooms, locker rooms, vehicles and sleeping quarters;
- Effective social distancing for employees and consumers or customers, as the risk of illness may warrant, including options for social distancing such as sign postage or markers; increasing physical space between workers at the worksite; limiting capacity of customers or consumers; delivering services remotely or through curbside pick-up; reconfiguring spaces where workers congregate; flexible meeting and travel options; flexible worksites; or implementing flexible work hours such as staggered shifts;
- Compliance with orders of isolation or quarantine that have been issued to employees;
- Compliance with applicable engineering controls such as proper air flow, exhaust ventilation, or other special design requirements;
- Designation of one or more supervisory employees to enforce compliance with the airborne infectious disease exposure prevention plan and any other federal, state, or local guidance related to avoidance of spreading an airborne infectious disease as applicable to employees and third parties such as customers, contractors, and members of the public within the workplace;
- 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 work site; and
- Verbal review of infectious disease standard, employer policies and employee rights under this section.
Enforcement and Private Right of Action
The HERO Act creates a private right of action, allowing employees to sue their employers for not complying with the safety standard, which “creates a substantial probability that death or serious physical harm could result from a condition which exists.” A prevailing plaintiff can be awarded up to $20,000 in damages plus attorneys’ fees. The HERO Act also provides anti-retaliation protections for employees who exercise their rights under the law, report violations, report an airborne infectious disease exposure concern, and refuse to work where the employee reasonably believes, in good faith, that working poses an unreasonable risk of exposure to an airborne infectious disease based on existing working conditions.
Employers must be prepared to adopt the HERO Act’s safety standards by either adopting the model plan (which has not yet been published) or their own plan that meets or exceeds the requirements of the model plan. Before June 4th, the State should issue additional guidance as well as the model plan. In the meantime, we will continue to keep you informed. Murtha Cullina’s Labor and Employment team is prepared to provide guidance on these and related developments.