Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
In an effort to prevent occupational exposure to an airborne infectious disease, the New York legislature has passed the aptly named New York Health and Essential Rights Act, or NY HERO Act, which amends the New York Labor Law (NYLL) by adding two new sections.1 On May 5, 2021 Governor Cuomo signed the bill into law; however, he also stated that amendments to the Act would be forthcoming to address deficiencies in the Act. Such amendments include: (1) making technical changes to the law by giving the New York Department of Labor and employers additional instructions for developing and implementing workplace standards; (2) requiring employers to immediately cure violations; and (3) limiting litigation to situations where employers act in bad faith and fail to cure deficiencies (which reduces some of the penalties currently written in the law). The amendments were signed into law by Governor Cuomo on June 14, 2021.2
Unlike other states, New York does not have robust and longstanding state occupational safety and health laws, standards and mechanisms. This law is therefore notable because it represents one of the rare times that New York State has passed laws setting minimum safety standards that apply to the private sector. Section 1 of the Act requires that employers prepare model safety plans, and prohibits discrimination and retaliation against any employees who exercise their rights under the Act. Section 2 requires certain employers to establish joint workplace safety committees with their employees.
Who is Covered?
The Act defines “employees” broadly to include, but not be limited to, those individuals “providing labor or services for remuneration” as well as, among others, part-time workers, independent contractors, domestic workers, home health and personal care workers, seasonal workers, and contractors or subcontractors working at a worksite. The term employees also includes individuals working for digital applications or platforms, staffing agencies, contractors or subcontractors on behalf of the employer at any individual work site, as well as any individual delivering goods or transporting people at, to or from the work site 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 the Labor Law. State and other governmental agency employees and independent contractors of the state are excluded from the Act’s protections and state and governmental agency employers are exempt from the Act. Otherwise, the Act covers all employers in the state, regardless of size, and covers all work site locations, including locations where the employer has the ability to exercise control.
Model Safety Plans
Section 1 of the Act requires the New York State commissioner of labor, in consultation with the New York State Department of Health, to create and publish model airborne infectious disease exposure prevention standards for industries representing a significant portion of the workforce. The Act also directs the commissioner of labor to publish infectious disease exposure prevention standards for industries with unique characteristics requiring distinct standards and also a catchall model airborne infectious disease exposure prevention standard that will apply to all worksites not included in the specific industry standards. In establishing these minimum requirements, the labor commissioner is tasked with developing protocols to address the following topics: (1) employee health screenings; (2) face coverings; (3) personal protective equipment (PPE) required by industry and at the employer’s expense; (4) hand hygiene; (5) cleaning and disinfecting of shared work equipment and surfaces (i.e. telephones and doorknobs); (6) social distancing protocols; (7) mandatory or precautionary isolation or quarantine orders; (8) engineering controls; (9) assignment of enforcement responsibility of the safety plan and federal, state, and local protocols to one or more supervisory employees; (10) compliance with employee notice requirements; and (11) verbal review of standards, policies and employee rights.
The Act requires the labor commissioner to publish these airborne infectious disease exposure prevention standards in both in English and Spanish in addition to other languages depending on population and languages spoken in certain industries.
Within 30 days of the commissioner’s publication of the model general standard and the standards applicable to the industry, each employer must adopt and implement a model airborne infections disease exposure prevention plan either by adopting the labor commissioner’s model airborne infectious disease exposure prevention plan relevant to its industry or by creating its own safety plan that meets or exceeds the minimum standards established by the labor commissioner. If an employer chooses to establish its own airborne infectious disease exposure prevention standards, it must do so in consultation with collective bargaining representatives, or in a non-unionized workforce, with employee participation, and the plan must be customized to incorporate industry-specific hazards and worksite considerations. However, in no event may a non-supervisory employee be responsible for monitoring compliance with the employer’s plan.
Employers are required to distribute the plan to employees within 30 days after implementing such a plan, upon hire and within 15 days of reopening after business closure due to an airborne infectious period. The plan must be distributed in English and in an employee’s primary language if other than English, if a model policy has been developed in that specific language. Employers must distribute the plan to employees within 60 days after the commissioner publishes the model plan relevant to the industry. Employers must also post the plan at the worksite (other than a vehicle) and incorporate the plan into an employee handbook if the employer maintains a handbook. Moreover, employers must make the plan available for review upon request by an employee, independent contractor, employee representative, collective bargaining representative, the labor commissioner or to the commissioner of public health.
Discrimination and Retaliation Prohibited
Section 1 of the Act also prohibits discrimination and retaliation against employees. Employers cannot “discriminate, threaten, retaliate against, or take any adverse action” against employees for: (1) exercising their rights under the Act or the employer’s plan; (2) reporting violations of the Act or the employer’s plan to officials; (3) reporting or seeking assistance for an airborne exposure concern to an employer or official entity; or (4) refusing to work when the employee, acting in good faith, believes that dangerous exposure caused by working conditions inconsistent with laws or the required safety plan exists, with certain exceptions.
The Commission may assess civil penalties in the amount of $50 per day for an employer’s failure to adopt a plan and no less than $1,000 and not more than $10,000 for failing to follow a plan. The Act also permits employees in some instances to seek injunctive relief and for the courts to award costs, including attorneys’ fees.
If an employee is found to have brought a frivolous claim under the statute, the employer can be awarded costs and attorneys’ fees against the employee or against the attorney for the employee, or both.
Notice to Employer is Required Before Commencing Civil Action and Statute of Limitations
An employee may bring a civil action seeking injunctive relief against an employer for violating the airborne infectious disease exposure prevention plan “in a manner that creates a substantial probability that death or serious physical harm could result to the employee from a condition which exists, or from one or more practices … which have been adopted or are in use, by the employer at the work site, unless the employer did not and could not, with the exercise of reasonable diligence, know of the presence of the violation.”
Before bringing a civil action, an employee must give the employer notice of the alleged violation so the employer has an opportunity to cure it. An employee may not bring a civil action until thirty days after giving the employer notice of the alleged violation, except where an employee alleges with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith, and may not bring a civil action if the employer corrects the alleged violation.
An employee must bring a civil action within six months from the date the employee had knowledge of the violation alleged in such civil action.
Joint Labor-Management Workplace Safety Committee
Section 2 will be codified in section 27-d of the New York Labor Law. The Act defines employers broadly to include “any person, entity, business, corporation, partnership, limited liability company, or an association employing at least ten employees” but does not cover, among others, the State and government agencies. These covered employers must permit employees to establish and administer a joint labor-management workplace safety committee. Only one committee per worksite is required. If the employer already has an existing workplace safety committee that meets the requirements it is exempt from creating an additional workplace safety committee. The committee must be comprised of employer and employee designees, with at least two-thirds non-supervisory employees who are chosen by non-supervisory employees (unless a CBA exists, in which case the collective bargaining representative will choose the non-supervisory employees who will serve on the committee). The Act also authorizes the creation of multiple committees representing geographically distinct worksites. Covered employers are not permitted to interfere with the selection of employees who serve on this committee.
The Act authorizes committees to: (1) raise health and safety issues to employers; (2) review occupational health and safety policies; (3) review policies enacted in the workplace in response to, among other things, laws and executive orders; (4) participate in government workplace site visits, unless prohibited by law; (5) review employer-filed reports pertaining to workplace health and safety; (6) schedule and meet (for no longer than two hours) quarterly during working hours; and (7) allow committee designees to attend a training without loss of pay for a maximum of four hours on the function of worker safety committees and an introduction to occupational health and safety. Employers are not permitted to retaliate against employees involved in safety committees.
It is safe to assume that it will take the labor commissioner some time to devise, write and publish the industry-specific model plans contemplated by the Act. Employers should use the lead time, before these standards are published, to evaluate their return-to-work guidelines and facilities to evaluate areas that may need to be reconfigured to comply with likely safety mandates. Employers should also make any budgetary allowances to prepare for the likelihood that additional expenditures will be needed to comply with the PPE and cleaning mandates in the Act. Employers can also begin preparing revisions to employee handbooks to ensure these new laws are incorporated, and devise a plan for dealing with greater employee involvement in health and safety policies.
1 Section 1 of the Act amends the NYLL by adding Section 218-b, regarding the establishment of model safety plans for prevention of airborne infectious diseases. Section 2 of the Act amends the NYLL by adding section 27-d regarding the establishment of workplace safety committees. Section 1 of the Act is effective 60 days after the Act becomes law and section 2 of the Act is effective 180 days after the Act becomes law. Accordingly, the commission must publish the required standards by July 5, 2021. This is a significant amendment because the original law required the commission to publish standards within 30 days of the passing of the law, or June 4, 2021.
2 In this Insight, the term “Act” refers to the original NY HERO Act together with its amendments.