Governor Cuomo signed the New York Health and Essential Rights Act (NY HERO Act) into law on May 5, 2021. This new Act will impose substantial responsibilities on all private employers to provide and maintain safe workplaces for the ongoing COVID-19 pandemic, and for all airborne infectious disease outbreaks in the future. The Act amends NYS’s labor law and adds the following two new sections: 1. Effective of June 4, 2021, Section 1 of the Act requires all private employers, regardless of size, to implement the state’s model airborne infectious disease exposure prevention standard or a similar policy that meets minimum requirements for preventing exposure to airborne infectious diseases in the workplace. The law directs the New York State Commissioner of Labor, in consultation with the State Department of Health, to develop the model exposure prevention standards by industry. To date, model standards have not been published by the Department of Labor (DOL). Failure to adopt the applicable model infectious disease exposure prevention standard or a similar policy in accordance with the NY HERO Act could result in monetary civil penalties. The law also allows employees under certain circumstances to bring legal action against the employer. 2. Effective November 1, 2021, Section 2 of the Act requires all private employers with 10 or more employees to allow employees to establish a joint employer and employee workplace health and safety committee that is authorized to raise heath and safety issues as well as evaluate related workplace policies without any form of retaliation. The model airborne infectious disease exposure prevention standard is expected to address workplace safety topics such as health screenings, testing, face coverings and Personal Protective Equipment (PPE), social distancing, hand hygiene, cleaning and disinfection protocol and engineering controls (e.g., air flow, exhaust ventilation, etc.). The NY HERO Act requires the airborne infectious disease exposure prevention plan be included in the employer’s handbook if the employer has one. However, if not, the employer must distribute the plan to current employees as of the effective date (currently June 4, 2021, subject to change as described below), at time of hire for new employees, and “upon reopening after a period of closure due to an airborne infectious disease.” Finally, employers will be required to post the plan in a visible location at the worksite. With guidance from the CDC and New York Department of Health rapidly evolving on masking and social distancing requirements for fully vaccinated individuals, employers are in a difficult position to understand what guidelines currently apply in the workplace. In addition, the New York State Assembly and Senate have both introduced amendments to the NY HERO Act to, among other things, delay the date upon which employers must create an airborne infectious disease exposure prevention plan to 30 days following the publishing of the model standard by the DOL, delay the timeframe in which employers must provide the plan to employees to 60 days following the publishing of the model standard, and clarify the definition of “work site” to exclude telework sites over which an employer has no control. In light of these developments, employers in NYS should do the following over the next several weeks as they anticipate and hopefully soon receive updated guidance: 1. Review the most up-to-date and industry specific guidance under New York Forward and ensure current compliance. 2. Closely monitor the passage of the amendments to the NY HERO Act and keep a watchful eye out for the model standard applicable to the employer’s industry. 3. Review the model standard once published and determine if it can or should be adopted “as is” or requires modification based on the nature of the employer’s business and operations. 4. If an employer elects to develop an alternative plan that meets or exceeds the model standard, that plan must be developed with “meaningful participation of employees” or “pursuant to an agreement with the collective bargaining representative.” 5. Plan to train supervisors/managers, HR and employees on the Act’s requirements, including the Act’s prohibition on retaliation against employees who participate in a workplace safety committee.
Delaney Vero, PLLC is closely monitoring the anticipated passage of the NY HERO Act amendments and release of the model standard and will update its guidance to clients as additional information becomes available. If you have any questions, please contact Sarah Delaney Vero at sdv@delaneyvero.com or 518-917-3105.