On May 5, 2021, Governor Andrew Cuomo signed the New York Health and Essential Rights Act (“HERO Act”) into law. This law requires all New York employers regardless of size to adopt airborne infectious disease exposure prevention plans.
What is The Hero Act?
Earlier this month, the Commissioner of the New York State Division of Labor released model plans for employers’ use.
- Employers have until August 4, 2021 to enact a workplace safety plan using one of the Commissioner’s model plans or one that meets or exceeds the standards set forth in the model plans.
- If an employer opts to not use the model plans, any plan adopted must be in consultation with union representatives, if applicable, or with employee participation.
The adopted plan must go into effect when an airborne infectious disease has been designated by the New York State Commission of Health as a “highly contagious communicable disease that presents a serious risk to the public health.” Currently, there is no such designation in effect and plans are not required to be in effect at this time. However, the HERO Act requires that plans must be adopted and circulated to employees now.
Workplace Safety Plan
- The workplace safety plan must address the following:
- Employee health screenings;
- Appropriate social distancing measures, including sign postage; limiting capacity; delivering services remotely or curbside; flexible meeting and travel options; and staggered shifts;
- Enforcement of isolation and quarantine orders;
- Face coverings and other personal protective equipment;
- Engineering controls, which can include proper air flow and exhaust ventilation;
- Cleaning and disinfecting requirements for shared equipment and frequently touched surfaces;
- Accessible workplace hand hygiene stations and adequate breaks for their use;
- Designation of one or more supervisory employees to enforce compliance with the plan and any relevant federal, state or local laws;
- Compliance with notification provisions to employees and local agencies;
- Verbal review of standards, employee rights, and employer policies; and
- Anti-retaliation provisions.
The Department of Labor has released industry-specific templates for agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail businesses.
- Employers will need to distribute the plan to employees in English and the employee’s primary language, if other than English.
- Employers are responsible for distributing the plan to employees within 30 days of its adoption – no later than September 3, 2021 – and when a new employee is hired.
- The plan must be distributed after the office reopens from a closing related to an infectious disease.
- Employers must display the plan in a visible and prominent location within the workplace and add it to their handbook, if they have one.
Retaliation & Discrimination
Employers are prohibited from retaliation or discrimination if an employee:
- Exercises rights under the HERO Act or the infectious disease prevention plan;
- Reports violations of or concerns about the HERO Act or the employer’s plan to their employer or any government entity or official;
- Refuses to work if the employee has a reasonable good faith belief that working exposes the employee or others to an unreasonable risk of exposure to an airborne infectious disease because of working conditions that fail to meet the plan’s minimum standards, but only if:
- the employee or another employee or representative notified the employer of the unsafe condition and the employer failed to cure it; or
- the employer knew or reasonably should have known about the condition and failed to remedy it.
Mandatory Workplace Safety Committees
Additionally, effective as of November 1, 2021, employers of 10 or more employees must:
- Permit employees to form workplace safety committees that are enabled to review health and safety issues, plans and policies;
- Participate in government site visits; and
- Otherwise evaluate and monitor workplace safety.
These committees should be primarily comprised of non-managerial employees and employers will be required to permit employees to attend training on workplace health and safety and the function of such committees, without loss of pay. Committee meetings may be scheduled quarterly, for less than two hours, and training about the function of such committees is limited to less than four hours.