On May 5, 2021, New York Governor Andrew Cuomo signed the New York Health and Essential Rights (HERO) Act. The law is designed to protect workers from exposure to infectious disease outbreak.
The HERO Act defines covered employees broadly as independent contractors, part-time employees, domestic workers, home health and personal care workers, seasonal workers, and contractors or subcontractors. State employees, government employees, and independent contractors of the state are excluded.
Employers are similarly broadly defined, but are limited to private employers who employ more than ten employees.
The Act requires the NYSDOL to create model prevention standards with templates. Employers can choose to implement these model standards using the templates, or employers can choose to develop their own standards.
The Act requires employers to allow employees to create a joint labor-management workplace safety committee by November 1, 2021. Committees are authorized to raise concerns to employers, review health and safety policies, participate in government workplace visits, and review employer reports pertaining to health and safety. Furthermore, the committee may meet during work hours for only two hours each quarter and attend trainings on the functions of the committee for only four hours each quarter without loss of pay. If meetings or trainings extend past the allocated time, employers can deduct pay accordingly.
The committee must include employer and employee designees. At least two-thirds of the committee must be made up of non-supervisory employees who will either be chosen by the non-supervisory employees or the collective bargaining representative if one exists.
An employer may also choose to establish its own prevention standards but must do with collective bargaining representative or employee participation, and must be customized to incorporate specific industry hazards and conditions. If the employer creates its own prevention plan, it must still meet all of the same requirements as the NYSDOL prevention plan. Prevention plans must exist for each worksite or each physical space.
June 2021 amendments clarified guidelines for employees concerning a private right of action. Employees may seek only injunctive relief for violations of the plan and only if a condition adopted by the employer can lead to a “substantial probability of death or serious physical harm.” The employer must have been aware of the violation. The employee must file a civil action wtihin six months from the date the employee learned of the violation.
The employee must also notify the employer of the violation and provide the employer with at least 30 days to cure it before bringing the action, unless the employer has demonstrated an unwillingness to cure it or acted in bad faith. An action may not be brought if the employer corrects the violation.
If a civil action is brought, employees may seek injunctive relief and attorney’s fees. However the claim must not be frivolous or the employer will be awarded costs and attorney’s fees. If an employer violates this Act, the Commission may penalize the employer $50 per day for an employers’ failure to adopt the plan and between $1,000 and $10,000 for failure to follow the plan.
The HERO Act prohibits retaliation. Employers may not retaliate against employees who refuse to work at a worksite where an employee reasonably believes that working would expose him or her to an unreasonable risk. However, to exercise this right, either employees must first notify the employer, the employer knew, or should have known of the working conditions, and the employer must have failed to act. Employers cannot take adverse employment actions against employees who exercise their rights under the Act.
The NYSDOL released the minimum standards and template policies on July 6, 2021 providing employers 30 days to implement the policies. The templates are available here: https://dol.ny.gov/system/files/documents/2021/07/model-airborne-infectious-disease-exposure-prevention-plan-p765.pdf. By August 5, 2021, employers must adopt the model standard prevention standard specifically for their industry or develop their own prevention plan that meets or exceeds the minimum standards.
Employers then have 30 days from the adoption of the policy, September 4, 2021, to provide clear protocols to their employees. Employers must give employees the written exposure plan in English and the primary language of their employees. This plan must be provided to new employees at hire, given to all employees 15 days after reopening due to airborne infectious disease closure, posted at the worksite, in the employee handbook, and be available at any time for review.
Plans must always exist but do not need to be activated unless an infectious disease is designated as highly contagious. Therefore, at this time employers only need to implement these prevention plans but they do not yet need to be activated.
When the Commissioner of Health declares a disease is a serious risk to the public health, employers must take of action under the plan. Employers must immediately review and activate their worksite exposure prevention plans, and provide a verbal review to employees of the policies and their rights. Employers must then provide each employee with a copy of the prevention pan, post it at the worksite, and ensure that a copy is always available to employees while on shift.
The prevention plan minimum standards require employees to take a health screening survey at the beginning of each work day to make sure no one has any symptoms. Employers must also provide face coverings, personal protective equipment, and hand hygiene facilities at the expense of the employers. Soaps must contain at least 60% alcohol. When possible, employees must remain six feet apart and remain physically distant.
In addition, employers must implement a plan for cleaning and disinfecting the workspaces. Frequently touched surfaces, shared tools, vehicles, sleeping quarters, bathrooms, and other common areas must be cleaned as frequently as possible.
Now that the NYSDOL standards and model policies have been implemented, New York employers are required to develop and implement a plan, post the plan in the worksite, and distribute the plan to all employees. Employers must be prepared to activate the plan at any time.
Famighetti & Weinick PLLC are experienced employment law lawyers on Long Island and the New York Hudson Valley. For more information about the HERO Act, contact one of our employment attorneys at 631-352-0050. More information is available on our website at http://linycemploymentlaw.com.
Today’s Long Island employment law blog was written by law student intern Danielle Jacobs.