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By: Thomas S. Tripodianos Published: May 2021

New York Health and Essential Rights Act, or NY HERO Act

The Governor has signed into law the  New York Health and Essential Rights Act, or NY HERO Act, which amends the New York Labor Law (NYLL) by adding two new sections. 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.

"Employees" includes those "providing labor or services for remuneration" but also part-time workers, independent contractors, and seasonal workers, among others. State and other governmental agency employees and employers are exempt from the Act.

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 a model airborne infectious disease exposure prevention standard for all worksites, by industry, and to establish minimum requirements for preventing exposure to airborne infectious diseases in the workplace.  In establishing these minimum requirements, the labor commissioner is charged 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 (e.g., hand tools); (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 industry-specific airborne infectious disease exposure prevention standards in both English and Spanish in addition to other languages depending on predominant languages used in the industry.

Employers may adopt the labor commissioner's plan or create their own that meets the standards established by the labor commissioner. If a union employer chooses to establish its own standards, it must do so in consultation with collective bargaining representatives, or in an open shop environment, with employee participation.

The plan must be distributed in both English and in an employee's primary language if other than English upon hire (provided there is a model policy developed in that specific language) and upon reopening after business closure due to an airborne infectious period. Employers must also post the plan at the worksite and incorporate the plan into an employee handbook if the employer has a handbook.  In addition, employers must make the plan available for review upon request by an employee, independent contractor, employee representative, collective bargaining representative, the labor commissioner, or the Commissioner of public health.

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 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 cases to seek injunctive relief and for the courts to award costs, including attorneys' fees and liquidated damages up to $20,000.

Section 2 of the Act applies to employers that employ at least ten employees or have an annual payroll of over $800,000 and a "workers' compensation experience modification rating of more than 1.2."  These covered employers must permit employees to establish and administer a joint labor-management workplace safety committee.  The committee must comprise at least two-thirds of non-supervisory employees who are chosen by non-supervisory employees (unless a CBA exists, in which case the collective bargaining representative will choose). 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 empowers committees to: (1) raise health and safety issues to employers; (2) review and comment on 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; (5) review employer-filed reports about workplace health and safety; and (6) schedule and meet quarterly during working hours. Employers are not permitted to retaliate against employees involved in safety committees.

Now is an excellent time to review your existing handbooks and COVID safety plans in anticipation of incorporating the Commissioner's model plan.

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