On May 5, 2021 Governor Cuomo signed into law the New York Health and Essential Rights Act (the “HERO Act”) which imposes workplace safety obligations on private sector employers in New York State.  For about one year, most employers have been subject to the New York Forward guidance issued by Governor Cuomo as part of the re-opening process after a reduction of the in-person workforce due to the COVID-19 pandemic.  The HERO Act appears to mandate permanent compliance with certain aspects of the New York Forward re-opening guidelines.  It also imposes additional requirements relating to the prevention of the spread of airborne infectious diseases in the workplace.  Notably, the HERO Act applies to all airborne infectious diseases, such as the flu, not just COVID-19.

The HERO Act applies to private sector employers, but not municipalities or other government agencies. Although this alert covers the HERO Act as it currently stands, when Governor Cuomo signed the Act into law, he indicated that he and the New York State Legislature would negotiate amendments, but no specific changes have yet been finalized.

Section 218-b of the Labor Law

The HERO Act adds a new Section 218-b to the New York State Labor Law, which requires the New York State Department of Labor (“NYSDOL”), in connection with the New York State Department of Health, to develop a model airborne infectious disease exposure prevention standard.  The legislation also requires the NYSDOL to develop airborne infectious disease exposure prevention standards for different industries.  The model standard issued by the NYSDOL must include requirements on procedures and methods related to each of the below:

• Employee health screenings;
• Face coverings;
• Required personal protective equipment applicable to each industry which must be provided at the employer’s expense;
• Accessible workplace hand hygiene stations and maintaining healthy hand hygiene;
• Regular cleaning and disinfecting of shared equipment;
• Effective social distancing;
• Compliance with mandatory or precautionary orders of isolation or quarantine;
• Compliance with applicable engineering controls (for example, proper air flow or exhaust ventilation);
• Designation of at least one supervisory employee to enforce compliance with the airborne infectious disease exposure prevention plan;
• Compliance with any other applicable laws, rules, regulations, or standards on notification to employees of potential exposure to an airborne infectious disease at the workplace; and
• Verbal review of the infectious disease standard and employee rights.

The model standard issued by the NYSDOL must also incorporate anti-retaliation requirements imposed by the HERO Act, including protections for employees who:  (1) exercise their rights under Section 218-b of the Labor Law; (2) report violations of Section 218-b of the Labor Law or the applicable airborne infectious disease exposure prevention plan; (3) report an airborne infectious disease concern to their employer, a government entity, a public officer, or an elected official; and (4) refuse to work where employees, in good faith, reasonably believe that such work exposes them to an airborne infectious disease as a result of working conditions that fail to meet laws, rules, policies, or orders of any governmental entity, including the minimum standards provided by the model airborne infectious disease exposure prevention standard.  However, to receive protection for a refusal to work, an employee must have notified the employer “of the inconsistent working conditions and the employer [must have] failed to cure the conditions” or the employer knew, or should have known, about the inadequate working conditions and failed to correct them.

All private sector employers in New York State must adopt either:  (1) the industry specific model airborne infectious disease exposure prevention plan issued by the NYSDOL; or (2) an alternative airborne infectious disease exposure prevention plan that meets or exceeds the model airborne infectious disease exposure prevention plan issued by the NYSDOL.  However, if an employer adopts an alternative airborne infectious disease exposure prevention plan, the employer must develop the plan pursuant to an agreement with a collective bargaining representative, if applicable, or through “meaningful participation of employees where there is no collective bargaining representative.”

For private sector employers who have a unionized workforce, the HERO Act provides that nothing in the newly added Section 218-b of the Labor Law is intended to diminish the rights employees may possess under a collective bargaining agreement and the requirements of the section may be waived by a collective bargaining agreement that explicitly references Labor Law Section 218-b.

Importantly, employers must post their airborne infectious disease exposure prevention plan in a “visible and prominent” location and include their airborne infectious disease exposure prevention plan in employee handbooks.  Also, employers must provide the airborne infectious disease exposure prevention plan to employees in English and in the language identified by each employee as the primary language of such employee upon hiring or reopening after a period of closure due to an airborne infectious disease (such as COVID-19).

These requirements under Section 218-b of the Labor Law take effect on June 4, 2021.  However, it is anticipated that Governor Cuomo and the Legislature will allow additional time for the NYSDOL to prepare a model airborne infectious disease exposure prevention standard and provide employers with more time to adopt an airborne infectious disease exposure prevention plan and communicate the plan to employees.

Section 27-d of the Labor Law

The HERO Act also adds a new Section 27-d to the Labor Law which requires that employers with ten or more employees must “permit employees to establish and administer a joint labor-management workplace safety committee.”  Each workplace safety committee must include both employer and employee designees, must be comprised of at least two-thirds non-supervisory employees, and must be co-chaired by an employer representative and a non-supervisory employee.  Moreover, members of the workplace safety committee must be selected by non-supervisory employees.  However, if there is a collective bargaining agreement in place, the collective bargaining representative must be responsible for the selection of employees to serve as members of the workplace safety committee.

An employer must permit workplace safety committees to perform, at a minimum, the below functions:

• Raise health and safety concerns, hazards, violations, complaints and violations to the employer, to which the employer must respond;
• Review policies established in the workplace that are required by the HERO Act or Workers’ Compensation Law and provide input on the policies;
• Review the adoption of “any policy in the workplace in response to any health or safety law, ordinance, rule, regulation executive order” or similar directives;
• Participate in any on-site visit by a governmental entity responsible for enforcing compliance with safety and health standards;
• Review any report filed by the employer related to safety and health in the workplace; and
• Regularly schedule a meeting, during work hours, at least once per quarter.

Additionally, employers must provide workplace safety committee members with paid time off to attend training on “the function of worker safety committees”, employee rights under the new amendments to the Labor Law and “an introduction to occupational safety and health.”  Employers are prohibited from retaliating against employees who participate in a workplace safety committee.

For private sector employers who have a unionized workforce, the HERO Act provides that nothing in the newly added Section 27-d of the Labor Law is intended to diminish the rights employees may possess under a collective bargaining agreement.  As with Section 218-b, the requirements of this Section may also be waived by a collective bargaining agreement that explicitly references it.

These requirements under Section 27-d of the Labor Law take effect on November 1, 2021.

Employers are encouraged to review their current health and safety policies, practices and procedures.  Additionally, employers should monitor for materials issued by the NYSDOL concerning airborne infectious disease exposure prevention plans.  Employers must ensure that they timely adopt either the model plan issued by the NYSDOL or develop an alternative plan that meets or exceeds the new requirements imposed by the HERO Act and communicate airborne infectious disease exposure prevention plans to employees in a timely manner.

As employers navigate these issues, our Firm’s labor and employment attorneys listed are standing by to provide legal advice.

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