New York State’s HERO Act – COVID-19 Workplace Safety Protocols

NYS HERO ACT

On May 5, 2021, Governor Cuomo signed the Health and Essential Rights Act (NYS HERO Act) into law, which requires all employers composing the state’s private sector to implement workplace safety plans to prevent the spread of airborne infectious diseases, including COVID-19. This legislation was conceived to address the return of private-sector employees to in-person work across a broad cross-section of industries, as NYS begins to gradually reopen following a period of decreased business activity during the COVID-19 pandemic.

Employers should be aware of the expansive reach of this new legislation. The law applies to employees and workplaces as defined below:

1. “Employee” shall mean any person providing labor or services for remuneration for a private entity or business within the state, without regard to an individual’s immigration status, and shall include, but not be limited to, part-time workers, independent contractors, domestic workers, home care and personal care workers, day laborers, farmworkers, and other temporary and seasonal workers. The term shall also include individuals working for staffing agencies, contractors, or subcontractors on behalf of the employer at any individual worksite, as well as any individual delivering goods or transporting people at, to, or from the worksite on behalf of the employer, regardless of whether delivery or transport is conducted by an individual or entity that would otherwise be deemed an employer under this chapter. The term shall not include employees of the state, any political subdivision of the state, a public authority, or any other governmental agency or instrumentality. 
2. “Worksite” shall mean any physical space, including a vehicle, that has been designated as the location where work is performed. The term shall include employer-provided housing and employer-provided transportation at, to, or, from the worksite but shall not include the residence of the employer or employee unless such residence has been provided by the employer and is used as the primary place of work.

Health and Safety Workplace Plans and Minimum Standards

The New York Department of Labor (“DOL”) is presently developing model safety plans and minimum standards to manage private sector industries. The deadline for the DOL to disclose such standards is July 4, 2021. Private-sector employers should be aware that they will have the opportunity to develop their plans, provided such plan meets or exceeds the DOL’s minimum standards.

The DOL regulations will address the following issues:

1. Health screenings of employees;
2. Personal protective equipment;
3. Personal hygiene, and cleaning and disinfecting of surfaces;
4. Social distancing;
5. Compliance with government isolation or quarantine orders;
6. Ventilation and airflow; and
7. Review of standards, policies, and employee rights.

After the DOL’s issuance of industry-specific requirements, private-sector employers must implement a plan that either meets or exceeds the DOL’s standards by August 3, 2021, or within thirty (30) days. Employers then have until September 2, 2021, or within thirty (30) days, to convey the plan and standards to employees.

Employers are obligated to visibly post the safety plan in the workplace, integrate the plan into the existing employee handbook and provide it to new hires or after reopening the business. 

Employer-Employee Joint Safety Committees

New York employers with ten (10) or more employees will be required to establish an employer-employee workplace safety committee. The committee, co-chaired by the employer’s representative and a non-supervisory employee and comprised of at least two-thirds of non-supervisory employees, will scrutinize, and assess the employer’s compliance with the minimum standards established by the DOL. Forthcoming NY DOL regulations will likely further clarify employer obligations with regard to committee selection procedures and powers. The employee members of the committee must be allowed to convene during normal working hours at least once per quarter, and committee members must be allowed paid time off to attend a HERO Act training session facilitated by the NY DOL and NY DOH.

Antiretaliation Provision: Penalties and Private Right of Action

The law contains an antiretaliation provision protecting those employees who report a violation(s) of the DOL’s minimum standards. Employers who fail to adopt a health and safety plan will be subject to a penalty of at least $50 per day until a plan is implemented. Employers who fail to adopt a plan altogether may be civilly fined an amount ranging from $1,000 to $10,000. The new law also authorizes employees to bring legal action against an employer for failing to comply with the DOL’s standards. However, Governor Cuomo recently advised that such fines and penalties will only be issued to those employers acting in bad faith by refusing and failing to cure deficiencies and/or violations as reported by employees.

Conclusion

The HERO Act takes effect on June 4, 2021. The section regarding the joint employer-employee committees is effective November 1, 2021. While awaiting the NY DOL model plans, employers should begin planning for compliance by reviewing their existing safety policies and protocols and working with those employees who will be responsible for implementing and enforcing the minimum standards.

Please contact Tiveron Law’s Corporate Practice Group at 716- 636-7600 should you require further legal assistance regarding the HERO Act.