5-10-21 New York Is The First In The Nation To Enact The HERO Act

Late last week, Governor Cuomo signed the New York Health & Essential Rights Act (commonly referred to as the HERO Act), making New York the first state in the nation to enact minimum requirements to prevent the spread of airborne infectious diseases, like COVID-19. The HERO Act is comprised of two sections.

Labor Law §218-b

The first section creates a new Labor Law provision, §218-b, which requires the New York State Department of Labor, in conjunction with the New York State Department of Health, to issue model airborne infectious disease exposure prevention standards for all work sites. These model standards will be differentiated by industry and are intended to set forth the minimum requirements for preventing exposure to airborne infectious diseases in the workplace.

Effective June 4, 2021, the model standards will include, at a minimum, procedures and requirements for:

• Employee health screenings
• Face coverings
• Required PPE
• Hand hygiene
• Cleaning and disinfection of shared equipment and frequently touched surfaces
• Effective social distancing
• Compliance with mandatory or precautionary orders of quarantine or isolation
• Compliance with applicable engineering controls such as proper airflow, exhaust ventilation or other special design requirements
• Designation of one or more supervisory employees to enforce compliance with the plan and any other federal, state, or local guidance, as applicable
• Notification guidelines
• Verbal review of the infectious disease standards, employer's policies and employees' rights under §218-b

The law requires that every employer establish an Airborne Infections Disease Exposure (AIDE) prevention plan, either by adopting the model policy, or by establishing an alternate plan that meets or exceeds the model requirements. If an employer elects to create an alternate plan, the law also requires that such plan include input from the organization's employees.

Each company's AIDE policy will need to be provided to all employees, in writing, in English and in the employees' primary language, both upon re-opening following a period of closure due to an airborne infectious disease, as well as upon hire. For those businesses that are currently in operation, the policy will need to be provided both upon the law's effective date (June 4), as well as at the time of hire. If a company utilizes an employee handbook, the AIDE plan must also be included in the handbook, as well as posted in the workplace (whether a handbook is used or not).

For employers that are subject to a collective bargaining agreement, like many of the COVID-19 regulations, the provisions of §218-b may be waived; however, this section must be explicitly referenced in the CBA when detailing the waiver.

The HERO Act contains significant penalties for non-compliant employers. The civil penalty for failure to adopt a satisfactory policy is a minimum of $50/day. The penalty for failure to abide by an employer's AIDE plan is a minimum of $1,000 and a maximum of $10,000. In addition, if an employer is found to have previously violated §218-b in the prior 6 years, those penalties increase to a minimum of $200/day and between $1,000 and $20,000.

Perhaps most concerning for employers, the law also permits employees to commence civil actions against their employers for failure to abide by the law. Such claims also provide for the payment of attorneys' fees for successful plaintiffs, as well as liquidated damages. While employers can bring counterclaims for "frivolous" actions, such claims do not generally find favor with judges in New York. Notably however, the Governor's signing of the HERO Act was contingent upon the legislature's agreement that, in coming weeks, it will amend the HERO Act so as to provide employers with a window of time within which they shall have an opportunity to resolve any alleged claims before becoming subject to civil action.

Labor Law §27-d

The second portion of the HERO Act creates a new Labor Law §27-d which provides that employers with ten or more employees "shall permit employees to establish" a labor-management workplace safety committee. This section, which becomes effective on November 1, 2021, provides that such committees must be composed of employer and employee designees, at least 2/3 of which must be non-supervisory employees. No employer shall interfere with the selection of employees who serve on the committee. The committee must be co-chaired by a representative of the employer and a non-supervisory employee. For employers that are subject to a CBA, the CBA rep may select employees for the committee.

The law provides that the workplace safety committee shall do the following:

• Raise health and safety concerns, complaints and violations to the employer, to which the employer must respond
• Review any policy put in place required by §218-b or the worker's compensation law and provide feedback
• Review adoption of any policy in response to a health and safety law, ordinance, rule, regulation or Executive Order
• Participate in any site visit by an OSHA or other health and safety representative
• Review any report filed by an employer related to health and safety in the workplace
• Regularly schedule meetings at least once per quarter, during work hours

In addition, employers must allow members of the committee to attend training on the functions of the committee, the rights established by the law and an introduction to occupational health and safety during working hours.

What Should Employers Be Doing Now

Although the model AIDE standards have not yet been released, employers should begin reviewing their existing COVID-19 prevention plans to ensure that, at a minimum, the categories outlined in §218-b are covered and be prepared to make necessary changes, or to adopt the model policy, as soon as it becomes available. This means that employers should ensure that all members of their existing COVID policy teams or the individuals who will be responsible for creation and oversight of the AIDE policy are familiar with the HERO Act and are prepared to timely collaborate on implementation of the company's policy.

In addition, employers should ensure that they are prepared to post and distribute the AIDE policy, once adopted, including addition of the policy to their employee handbooks, and should provide managers and supervisors with instruction on compliance with the policy, as well as anti-retaliation training.

Given that §27-d does not require creation of a labor-management workplace safety committee, only that employers permit the creation of such a committee, employers may want to consider the likelihood of their employees' desire to form the committee. Where an employer believes that its employees are likely to engage in the formation of a workplace safety committee, the employer should begin to prepare for implementation of the committee, including but not limited to, consideration as to the employer's representatives and coordination of a method for employees to select the employees' own representatives. Consultation with employment counsel is recommended in circumstances where a labor-management workplace safety committee is going to be created as employers need to be sure that they do not take any action that may violate the National Labor Relations Act.

We will continue to update you as additional amendments are made to the HERO Act and the model standards are issued.

For more information contact your Woods Oviatt attorney or Lorisa D. LaRocca, Esq., Chair, Labor & Employment Department at 585-987-2834 or LLarocca@woodsoviatt.com.