On May 5, 2021, NYS Governor Cuomo signed into law the Health and Essential Rights Act (HERO Act). The legislation was created in order to address ongoing safety concerns identified by the legislature and the governor related to COVID-19 as the transition to in-person work continues and as COVID-19 executive orders expire. The HERO Act places significant obligations on employers. The two key parts of this legislation are (1) the imposition of new health and safety obligations on New York employers and (2) the requirement that employers create joint labor-management workplace safety committees. This alert details these requirements and the outlook for further developments.
Health and Safety Standards for Employers
The HERO Act requires the New York State Department of Labor (DOL) to establish minimum standards for preventing the spread of airborne infectious diseases in the workplace. The deadline for the DOL to issue the industry-specific standards is July 4, 2021. These regulations will include requirements for employee health screenings, face coverings, required PPE, hand hygiene stations, regular cleaning and disinfecting, social distancing, and compliance with quarantine, isolation orders, or both.
After the DOL issues these regulations, employers will have until August 3, 2021, or 30 days, to implement a health and safety plan that either meets or exceeds the standards set by the DOL. Employers then have until September 2, 2021, or 30 days, to communicate the standard to employees. This communication will be accomplished through posting the plan in the workplace and distributing a copy of the plan to all employees. In addition, employers must incorporate the safety plan into their employee handbooks.
The HERO Act also contains an antiretaliation provision protecting employees who report a violation of the DOL’s standards. The DOL is also authorized to penalize employers for noncompliance with its standards. Employers who fail to adopt a plan will be subject to a penalty of at least $50 per day until a plan is implemented, and employers who fail to comply with an adopted plan could be subject to fines ranging from $1,000 to $10,000. The act also permits employees to bring an action for injunctive relief against an employer for failing to comply with the DOL’s standards.
Joint Labor-Management Workplace Safety Committees
Effective November 1, 2021, employers with 10 or more employees must permit their employees to create joint labor-management workplace safety committees. The committee must be composed of at least two-thirds nonsupervisory employees, and must be co-chaired by both an employer representative and a nonsupervisory employee.
The HERO Act authorizes these committees to (1) raise workplace health and safety concerns to which the employer must respond, (2) review employer workplace safety policies and provide feedback, (3) participate in government site visits relating to workplace health and safety standards, (4) review any employer health and safety report, (5) schedule and attend committee meetings, and (6) attend trainings related to workplace health and safety standards. The workplace safety committees are not limited in scope by the airborne infectious disease standards discussed in the previous section.
Retaliation against committee members is prohibited and punishable by a civil fine of up to $10,000. Committee members may commence an action for retaliation in court and may recover liquidated damages and attorneys’ fees.
Amendments to the HERO Act
Governor Cuomo also announced that he reached an agreement with the legislature to amend the HERO Act to:
- Include instructions and timelines for the DOL and employers to enact the safety standards
- Provide an opportunity for employers to immediately cure violations
- Limit actionable conduct to situations where employers are “acting in bad faith and failing to cure deficiencies”
Given the significant obligations that employers will need to implement in the coming months, employers should be prepared to efficiently implement health and safety plans upon issuance of the DOL’s regulations. Steps should also be taken to create workplace safety committees prior to the November 1, 2021, deadline. An example of a preparatory step employers can take would be to evaluate the method by which committees will be selected.
If you have any questions regarding the content of this alert, please contact Michael Murphy, partner, at mjmurphy@barclaydamon.com; Brienna Christiano, associate, at bchristiano@barclaydamon.com; or another member of the firm’s Labor & Employment Practice Area.