UPDATE: Governor Cuomo Signed the HERO Act May 6, 2021

The NY Senate and Assembly have passed a bill, the Health and Essential Rights Act, (S.1034B/A.2681B), known as the “NY HERO Act,” which Governor Cuomo is expected to sign.

If signed, the NY HERO Act, to be added to the Labor Law as Section 218-b, will require the NY Department of Labor (DOL), in conjunction with the NY Department of Health (DOH), to establish model workplace safety protocols to prevent the spread of airborne infectious diseases, like COVID-19. All private employers will be required to adopt the model protocols (which would be established for different industries), or an alternative written plan that meets or exceeds the minimum standards set forth in the model. Employers who fail to establish or abide by a safety plan will be subject to penalties and civil suit.

In addition, employers with ten (10) or more employees will be required to allow employees to establish joint employer-employee health and safety committees to evaluate the effectiveness of the employer’s safety protocols and raise safety concerns.  The DOL will adopt rules and regulations to provide further guidance.

While the law was drafted to address the COVID-19 pandemic, it will apply to any “airborne infectious disease,” defined as “any infectious viral, bacterial or fungal disease that is transmissible through the air in the form of aerosol particles or droplets and is designated a highly contagious communicable disease by the commissioner of health that presents a serious risk of harm to the public health.”

Model Safety Protocols

The NY DOL and DOH will establish a model safety plan for each industry that will address many of the same subjects included in the “New York Forward” COVID-19 reopening guidelines, previously reported here. These subjects include:

• employee health screenings;
• face coverings;
• personal protective equipment to be provided by the employer;
• accessible hand hygiene stations and adequate break times for workers to use handwashing facilities;
• regular cleaning and disinfecting of shared equipment and frequently touched surfaces;
• effective social distancing, including options such as signs or markers, increased physical space between workers, limited capacity, delivery of services remotely or through curbside pick-up, reconfigured workplaces, flexible meeting and travel options, and flexible worksites and work hours such as staggered shifts;
• compliance with mandatory or precautionary orders of isolation or quarantine that have been issued to employees;
• 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 airborne infectious disease exposure prevention plan and any other federal, state, or local guidance; and
• verbal review of infectious disease standards, employer policies, and employee rights under the law.

If an employer establishes its own safety plan, rather than using the State’s model plan, the employer must develop the plan pursuant to an agreement with a collective bargaining representative or, where there is no collective bargaining representative, with the “meaningful participation of employees.” What “meaningful participation” entails will presumably be explained when rules and regulations are issued.

Employers will be required to post their written safety plan in the workplace, include the plan in any employee handbook and provide a copy of the plan to employees in English (and the employee’s primary language) upon the effective date of the HERO Act and upon hire.

Employer-Employee Committees

Employers with ten (10) or more employees will be required to allow their employees to establish joint employer-employee health and safety committees to evaluate the effectiveness of the employer’s safety protocols and raise issues. At least two-thirds of the committee members must be non-supervisory employees and the committee is to be co-chaired by an employer representative and a non-supervisory employee. Where there is a collective bargaining agreement, the union will select the non-supervisory members of the committee.

The joint committee must be allowed to meet during working time at least once per quarter. In addition, committee members must be allowed paid time off to attend a training, to be established by the NY DOL and DOH, regarding the functions of the safety committee, the rights established by the HERO Act, and an “introduction to occupational safety and health.”

The committee members are authorized to:

• raise health and safety concerns, hazards, complaints, and violations to the employer, to which the employer must respond;
• review and provide feedback on any policy put in place in the workplace required by the HERO Act or the worker’s compensation law;
• review the adoption of any workplace policy instituted in response to any health or safety law, ordinance, rule, regulation, executive order, or another related directive;
• participate in any site visit by any governmental entity responsible for enforcing safety and health standards; and
• review any report filed by the employer related to the health and safety of the workplace.

Retaliation against an employee for participating in a joint safety committee is prohibited.

Penalties and Private Right of Action

Employers that fail to adopt or abide by a safety plan would be subject to penalties that could include a fine of $50 per day for failure to adopt a compliant plan or between $1,000 and $10,000 for failure to comply with an adopted plan. If the DOL determines that a company has violated the law in the prior six (6) years, the penalties may increase to $200 per day for failure to adopt a compliant plan or between $1,000 and $20,000 for failure to comply with an adopted plan.

The HERO Act will prohibit discrimination or retaliation against an employee who:

• reports a violation of the HERO Act or the employer’s safety plan to any state, local, or federal government entity, public officer or elected official;
• reports concerns about airborne infectious diseases; and/or
• refuses to work if the employee reasonably believes, in good faith, that the employee, other employees or the general public would be subject to an unreasonable risk of exposure to an airborne infectious disease, provided that the employee first notified the employer of any concerns and the employer failed to rectify or otherwise address those concerns.

The HERO Act establishes a private right of action for employees for a violation of the law, who may seek injunctive relief, costs, attorneys’ fees and liquidated damages. To address objections from employer groups concerned about frivolous lawsuits, the HERO Act also provides that if a court finds that a lawsuit is “completely without merit in law and undertaken primarily to harass or maliciously injure another,” the employer may seek sanctions against the attorney or party who brought the action.

Collective Bargaining Agreements

The HERO Act states that nothing in the law “shall be deemed to diminish the rights, privileges, or remedies of any employee under any collective bargaining agreement.” Therefore, if a collective bargaining agreement (CBA) provides for rights greater than those included in the law, the CBA will control.

Employers and unions may also waive application of the HERO Act in a CBA, as long as the waiver “explicitly reference[s]” the statute. Even where the parties agree on a waiver, the employer would still have to adopt the model protocols, or a similar plan, to cover its non-union staff.

Effective Date and Next Steps

If, as expected, Governor Cuomo signs the bill, it would take effect thirty (30) days later, except that the section regarding the joint employer-employee committees would take effect one hundred and eighty (180) days after it is signed into law.

Several business groups, including local chambers of commerce, are seeking the following amendments: (1) to make the safety protocol applicable only during a declared state of emergency; (2) to eliminate the workplace safety committees and (3) to remove the “private right of action.” If the private right of action provision is not removed, companies would like to add a 90-day “cure” period to allow employers to fix issues before a lawsuit can be filed.

On April 28, 2021, the New York Essential Workers Coalition, a group of unions and other activists, sent a letter to Governor Cuomo urging him to sign the bill.

We will continue to monitor the progress of this bill and will report on any model workplace safety plans or applicable rules and regulations when they are issued.

Until a model plan is developed, employers should review their current COVID-19 plans to make sure the plans are in compliance with New York’s guidance on reopening and safety procedures for mitigating the spread of COVID-19.