NY HERO ACT INFECTIOUS DISEASE PREVENTION PLANS: WHAT ALL PRIVATE EMPLOYERS NEED TO KNOW
The New York Health and Essential Rights Act (HERO Act) was signed into law by Governor Andrew Cuomo on May 5, 2021. The HERO Act added two new sections to the New York Labor Law: Section 218-b, requiring all private employers to adopt airborne infectious disease prevention plans and standards; and Section 27-D, requiring private employers with 10 or more employees to allow the creation and administration of joint labor-management workforce safety committees. Governor Cuomo approved clarifying amendments (the Amendments) to the HERO Act on June 14, 2021. The HERO Act and its Amendments impose significant workplace health and safety obligations on New York employers.
NYSDOL Model Plans
On July 6, 2021, the New York State Department of Labor (NYSDOL) released: (i) the NY HERO Act Airborne Infectious Disease Exposure Prevention Standard (“NY Standard”); (ii) the model airborne infectious disease exposure prevention plan (“model safety plan”), which is applicable to all employers; and (iii) 11 industry-specific model safety plans contemplated by the HERO Act, including construction, food services, and manufacturing and industrial, among others.
By August 5, 2021, all New York employers must either: (i) adopt the applicable model safety plan(s) relating to their business or (ii) develop and adopt an alternative safety plan (or plans) that meet or exceed the model safety plans’ requirements. If an employer decides to create a safety plan of its own, employees must meaningfully participate in the drafting of such plan.
At a minimum, safety plans must: (i) specify the worksites and employees that are covered by the plan; (ii) designate supervisory employees to enforce compliance with the safety plan and act as “designated contacts;” (iii) establish “Minimum Controls” to be used in all areas of the worksite during an airborne infectious disease outbreak, including a “Stay at Home Policy,” health screenings, face covering guidance, physical distancing protocols, and other health and hygiene measures; (iv) establish “Advanced Controls” for activities where the Minimum Controls alone will not provide sufficient protection for employees, including temporary suspension or elimination of “risky activities,” engineering controls such as ventilation systems, installation of automatic disinfection systems and partitions, or changing the layout of the worksite to avoid points or areas where employees may congregate; (v) identify sanitation procedures that must be followed during an outbreak; (vi) specify actions to be taken in the event an actual or suspected infectious disease case occurs at work, including instructing the sick individual to wear a face covering, leave the worksite, and follow DOH and/or CDC guidance; and (vi) provide for employee training on the safety plan, including designation of an individual responsible for communicating to employees about the plan.
Employers must provide their employees with a written copy of the safety plan in English and in the employee’s primary language within 30 days of adoption, but no later than September 4, 2021. Employers must also post the safety plan in a visible and prominent location within each worksite. If an employer has an employee handbook, a copy of the safety plan must also be included in the employee handbook.
The NY Standard applies to all private employers with worksites in New York State, with an exception carved out for any employees covered by a temporary or permanent standard adopted by the U.S. Occupational Safety and Health Administration (such as health care workers protected under the Emergency Temporary Standard). The NY Standard applies only to an airborne, infectious agent or disease that is designated by the Commissioner of Health as highly contagious, communicable, and a serious risk of harm to the public health.
Implementation of the Safety Plan
If the Commissioner of Health designates a public health emergency based on an airborne infectious disease, an employer will be required to implement the safety plan it has adopted. In such event, the employer must:
- Immediately review the worksite’s exposure prevention plan and update it to reflect current information, guidance, and mandatory requirements issued by federal, state, or local governments, and periodically review and revise the plan to reflect current governmental requirements.
- Finalize, promptly activate, and distribute the updated plan to employees.
- Post a copy of the plan in a visible and prominent location at the worksite and ensure that a copy of the plan is accessible to employees during all work shifts.
- Verbally inform all employees of the existence and location of the plan.
- Designate a supervisory employee to monitor any updates to federal, state, or local guidance related to preventing the spread of the airborne infectious disease.
- Train employees during working hours (either in-person in a well-ventilated environment or via audio or video conference) on all elements of the plan, including: (1) the infectious agent in question and the disease(s) it can cause, (2) the signs and symptoms of the disease, (3) how the disease can be spread, (4) an explanation of the plan, (5) the activities and locations at the employer’s worksite that may involve exposure to the infectious agent, (6) the use and limitations of exposure controls, and (7) a review of the NY Standard and employee rights under New York Labor Law, Section 218-B.
Employers may not discriminate, threaten, retaliate against, or take adverse action against any employee for exercising rights under the safety plan, including reporting conduct the employee reasonably believes in good faith violates the safety plan. The retaliation protections also apply to employees refusing to work where they reasonably believe in good faith that such work exposes employees or the public to an unreasonable risk of exposure, if the employer had been notified of the inconsistent working conditions, or if the employer knew or should have known of the consistent working conditions, and the employer failed to cure the risk.
The NYSDOL may investigate violations of Section 218-b and may assess civil penalties of not less than fifty dollars per day for failure to adopt an airborne infectious disease exposure prevention plan, or not less than one thousand dollars nor more than ten thousand dollars for failure to abide by an adopted airborne infectious disease exposure prevention plan.
Section 218-b also creates a limited private right of action to obtain injunctive relief against employers for failing to comply. If successful, courts may grant injunctive relief and award attorneys’ fees and costs, and liquidated damages up to $20,000.
Remedies for retaliation claims may include ordering payments of liquidated damages, costs and reasonable attorneys’ fees to the employee; ordering reinstatement of employees; and awards of back pay.
The HERO Act cautions, however, that frivolous claims may result in “sanctions against the attorney or party who brought such action.”