The New York HERO Act: What Employers Need to Know

The New York HERO Act: What Employers Need to Know

On May 5th, 2021, New York State Governor Andrew Cuomo signed the New York Health and Essential Rights Act (NY HERO Act), which mandates extensive new workplace health and safety protections in response to the COVID-19 pandemic. The act sets forth mandatory standards not just for COVID-19, but for all airborne infectious diseases.

Section 1 

Section 1 of the act requires the New York State commissioner of labor, in consultation with the state department of health, to create and publish a model airborne infectious disease exposure prevention standard and requires all private employers to implement such model or similar plans at their worksites. Section 1 takes effect on June 4, 2021.

Minimum requirements will include:

• Employee health screenings
• Face coverings
• Industry-specific personal protective equipment
• Accessible handwashing and hygiene stations
• Regular disinfection of shared equipment
• Social distancing
• Compliance with quarantine and isolation requirements
• Compliance with proper engineering controls for air flow and ventilation
• Designation of a supervisory employee to enforce compliance with the prevention plan
• Verbal review of the infectious disease standard, and employer/employee rights and policies

The HERO Act requires every employer to adopt an airborne infectious disease prevention plan. An employer may adopt the model standard or establish an alternative prevention plan that is equal to or exceeds the model. If an employer elects to establish an alternative prevention plan, it must be industry specific. Additionally, the alternative prevention plan must be developed with the collective bargaining representative, if there is one, or with employee participation.

The plan must be included in a handbook, if the employer has one, or otherwise distributed to current employees as of the effective date of Section 1, at the time of hire of new employees, and “upon reopening after a period of closure due to airborne infectious disease.” In addition, employers are required to post the plan in a conspicuous location at the worksite.

The act states that the standard will contain anti-retaliation provisions, expressly prohibiting retaliation against employees for the following:

• “Exercising their rights” under the act
• “Reporting violations of this [act] or the applicable airborne infectious disease exposure prevention plan to any state, local, or federal government entity, public officer, or elected official.”
• “Reporting an airborne infectious disease exposure concern or seeking assistance or intervention with respect to … concerns, to their employer … or government entity.”
• “Refusing to work where such employee reasonably believes, in good faith, that such work … [poses] an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with laws, rules, policies, orders of any governmental entity, including but not limited to, the minimum standards provided by the model airborne infectious disease exposure prevention standard, provided that the employee … notified the employer of the inconsistent working conditions and the employer failed to cure the conditions or the employer had or should have had reason to know about the inconsistent working conditions and maintained the inconsistent working conditions.”

Section 2

Section 2 of the act, which takes effect on November 1, 2021, requires all private employers to allow employees to establish a joint employer-employee workplace health and safety committee authorized to raise health and safety issues and evaluate workplace health and safety policies. Two-thirds of the committee must be non-supervisory employees, and the committee members must be selected by non-supervisory employees.

The workplace committee’s and designees’ tasks may include, but are not limited to:

• Raising health and safety concerns, hazards, complaints, and violations with the employer
• Reviewing and providing feedback for any workplace policy in response to health and safety law, ordinance, rule, regulation, executive order, or related directives
• Participating in site visits by government representatives enforcing the standards
• Reviewing reports filed to the employers related to the health and safety of the workplace
• Scheduling at least one meeting per quarter, during work hours

Employers must permit members to attend committee training without withholding pay, and may not retaliate against members for their actions taken related to their participation on the committee.

Non-Compliance

If the Commissioner finds a violation of the HERO Act, the employer may be penalized a minimum of $50 per day for failure to adopt a prevention plan or $1,000 – $10,000 for failure to abide by a prevention plan.

The act permits employees to bring a civil action for injunctive relief, and, if successful, they may recover attorneys’ fees. In addition, courts may order “payment of liquidated damages of no greater than twenty thousand dollars, unless the employer proves a good faith basis to believe that the established health and safety measures were in compliance with the applicable airborne infectious disease standard.”

Next Steps for New York State Employers

New York State employers may want to consider taking the following measures:

• Reviewing and revising current health and safety policies and practices
• Monitoring and reviewing materials published by the New York State Department of Labor to ensure compliance with the act’s model standard
• Implementing administrative functions to ensure compliance with the act
• Training supervisory and managerial employees, as well as human resources professionals, on the requirements of the act