New York Enacts Amended HERO Act Requiring Employers To Implement Workplace Airborne

On May 6, 2021, New York Governor Andrew Cuomo signed into law
“first in the nation” legislation designed to create
enforceable health and safety regulations aimed at preventing
airborne infectious diseases in the workplace. In signing the New
York Health and Essential Rights Act (HERO Act), Governor Cuomo
explained its intent: “the state acted quickly to lay down
basic guidelines through executive orders [in response to
COVID-19], but it was clear that a permanent, legislative solution
was needed.” The New York Legislature subsequently passed
expected amendments to the law, which Governor Cuomo signed on June
14, 2021. As discussed below, the HERO Act takes effect in stages
and requires the New York State Department of Labor (NYSDOL) to
develop and publish model airborne infectious disease exposure
prevention standards that employers can choose to either adopt or
use as a guide in developing their own airborne infectious disease
exposure prevention plans.

Covered Employers

The law defines “employers” broadly to include all New
York employers regardless of size. Furthermore, the law covers not
only employees, but also independent contractors, domestic workers
and contractors or subcontractors working at an employer’s work
site. The law also expansively defines an employer’s “work
site” subject to the law’s requirements. Under the law,
work site includes any location where work is performed “over
which an employer has the ability to exercise control.”
However, the law specifically excludes employee
residences and other telework sites, unless the employer can
exercise control over the telework site.

Model Workplace Airborne Infectious Disease Exposure Prevention

Section 1 of the law directs the NYSDOL, in consultation with
the New York State Department of Health (NYSDOH), to publish model
airborne infectious disease exposure prevention standards for
“industries representing a significant portion of the
workforce, or those with unique characteristics requiring distinct
standards,” as well as a general model standard applicable to
all other work sites. The model standards will address requirements
such as health screenings, face coverings, cleaning and
disinfecting, and social distancing, as well as an anti-retaliation
provision. While the law initially required the model standards to
be published by June 4, 2021, the amendments extended the deadline
to July 5, 2021.

Within 30 days following the NYSDOL’s publication of the
model standards, employers must either adopt and implement the
model standard applicable to the employer’s industry or develop
and implement their own plan. Any alternative plan developed by an
employer must meet or exceed the minimum standards set forth in the
applicable model standard. Any such alternative plan must be
developed with “meaningful participation” of nonunion
employees or pursuant to an agreement with the union for unionized
employees. The amendments also clarify that any employee with
oversight responsibility for compliance with the new law must be a
supervisory employee.

Employers must then provide the standards in writing to all
employees within 30 days of adoption (or, in other words, within 60
days of the NYSDOL’s publication of the model standards). The
law also requires employers to include the standards in their
handbook and post them at each work site. Employers also must
provide a copy to employees within 15 days after reopening after a
period of closure due to an airborne infectious disease, and to all
newly hired employees upon hire.

Joint Labor-Management Workplace Safety Committee

Section 2 of the law, which will take effect on November 1,
2021, requires most employers to establish a joint labor-management
workplace safety committee, which will meet once per quarter to
raise health and safety issues to employers, review and comment on
health and safety policies, and participate in other key aspects of
health and safety in the workplace. The law requires one such
committee per work site. The law also contains requirements for the
composition and structure of the committee and dictates by (and
from) whom nonsupervisory committee members must be selected. For
example, the committee must be composed of two-thirds
nonsupervisory employees and, where there is a collective
bargaining agreement in place, the bargaining representatives will
select these employees. Employers with unionized workforces will
need to take special care to ensure these requirements are met
within the framework of their existing collective bargaining
relationships, including allowing the union to select the employees
who will serve as members of the committee.

Nondiscrimination and Retaliation

The law also contains a broad anti-discrimination and
nonretaliation provision which forbids employers from taking
adverse action against an employee for: (1) exercising rights under
the law or the employer’s prevention plan; (2) reporting
violations of the law or the prevention plan to a government entity
or official; (3) reporting or seeking assistance for an airborne
infectious disease exposure concern to the employer or to a
government entity or official; or (4) refusing to work due to a
reasonable, good faith belief that the work will expose the
employee, other workers or the public to an unreasonable risk of
exposure to an airborne infectious disease due to the existence of
working conditions that are inconsistent with applicable law or the
minimum model standards, provided that the employer is on notice of
the unsafe conditions and has failed to cure them.

Penalties and Civil Right of Action

The law provides for civil penalties up to $20,000 for
violations, authorizes the NYSDOL to issue injunctive relief and
provides for a private right of action by employees for injunctive
relief and, in some cases, attorneys’ fees. The law’s
private right of action for employees, which was modified by
amendments made to the statute shortly following its enactment,
provides redress in situations where the employer’s actions
“created a substantial probability that death or serious
physical harm could result to the employee” and the employer
acted in bad faith or failed to cure a previously raised
deficiency. The statute of limitations is six months.

Notably, a prerequisite for an employee to bring a civil action
is the provision of notice of the alleged violation. An employee
may not bring a civil action until 30 days after providing such
notice unless the employee alleges with particularity that the
employer has demonstrated an unwillingness to cure a violation in
bad faith. An employee may not bring a civil action if the employer
corrects the alleged violation.

The law also specifically authorizes an award of costs and
reasonable attorneys’ fees to the employer where an action
brought by an employee “is found, at any time during the
proceedings or upon judgment, to be frivolous by the

What This Means for Employers

Employers should be prepared to review the NYSDOL’s model
standards when they are published and make note of the
implementation obligations and timeline outlined above. Upon review
of the model standards, employers should identify key areas of
importance to their business operations. A review of these key
areas may affect an employers’ decision on whether to adopt the
model standards or to develop their own alternative standards.

Employers who elect to develop alternative standards should
consider the role that employees will play in their creation and
ensure that the plan for their involvement will meet the law’s
“meaningful participation” requirement. Further,
employers should begin to consider their needs and plan for
establishing or modifying a workplace safety committee that meets
with the law’s requirements.

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