The model standards will address requirements such as health screenings, face coverings, cleaning and disinfecting, and social distancing, as well as an anti-retaliation provision.
On May 6, 2021, New York Governor Andrew Cuomo signed into law “first in the nation” legislation designed to create enforceable health and safety regulations aimed at preventing airborne infectious diseases in the workplace. In signing the New York Health and Essential Rights Act (HERO Act), Governor Cuomo explained its intent: “the state acted quickly to lay down basic guidelines through executive orders [in response to COVID-19], but it was clear that a permanent, legislative solution was needed.” The New York Legislature subsequently passed expected amendments to the law, which Governor Cuomo signed on June 14, 2021. As discussed below, the HERO Act takes effect in stages and requires the New York State Department of Labor (NYSDOL) to develop and publish model airborne infectious disease exposure prevention standards that employers can choose to either adopt or use as a guide in developing their own airborne infectious disease exposure prevention plans.
Covered Employers
The law defines “employers” broadly to include all New York employers regardless of size. Furthermore, the law covers not only employees, but also independent contractors, domestic workers and contractors or subcontractors working at an employer’s work site. The law also expansively defines an employer’s “work site” subject to the law’s requirements. Under the law, work site includes any location where work is performed “over which an employer has the ability to exercise control.” However, the law specifically excludes employee residences and other telework sites, unless the employer can exercise control over the telework site.
Model Workplace Airborne Infectious Disease Exposure Prevention Standards
Section 1 of the law directs the NYSDOL, in consultation with the New York State Department of Health (NYSDOH), to publish model airborne infectious disease exposure prevention standards for “industries representing a significant portion of the workforce, or those with unique characteristics requiring distinct standards,” as well as a general model standard applicable to all other work sites. The model standards will address requirements such as health screenings, face coverings, cleaning and disinfecting, and social distancing, as well as an anti-retaliation provision. While the law initially required the model standards to be published by June 4, 2021, the amendments extended the deadline to July 5, 2021.
Within 30 days following the NYSDOL’s publication of the model standards, employers must either adopt and implement the model standard applicable to the employer’s industry or develop and implement their own plan. Any alternative plan developed by an employer must meet or exceed the minimum standards set forth in the applicable model standard. Any such alternative plan must be developed with “meaningful participation” of nonunion employees or pursuant to an agreement with the union for unionized employees. The amendments also clarify that any employee with oversight responsibility for compliance with the new law must be a supervisory employee.
Employers must then provide the standards in writing to all employees within 30 days of adoption (or, in other words, within 60 days of the NYSDOL’s publication of the model standards). The law also requires employers to include the standards in their handbook and post them at each work site. Employers also must provide a copy to employees within 15 days after reopening after a period of closure due to an airborne infectious disease, and to all newly hired employees upon hire.
Joint Labor-Management Workplace Safety Committee
Section 2 of the law, which will take effect on November 1, 2021, requires most employers to establish a joint labor-management workplace safety committee, which will meet once per quarter to raise health and safety issues to employers, review and comment on health and safety policies, and participate in other key aspects of health and safety in the workplace. The law requires one such committee per work site. The law also contains requirements for the composition and structure of the committee and dictates by (and from) whom nonsupervisory committee members must be selected. For example, the committee must be composed of two-thirds nonsupervisory employees and, where there is a collective bargaining agreement in place, the bargaining representatives will select these employees. Employers with unionized workforces will need to take special care to ensure these requirements are met within the framework of their existing collective bargaining relationships, including allowing the union to select the employees who will serve as members of the committee.
Nondiscrimination and Retaliation
The law also contains a broad anti-discrimination and nonretaliation provision which forbids employers from taking adverse action against an employee for: (1) exercising rights under the law or the employer’s prevention plan; (2) reporting violations of the law or the prevention plan to a government entity or official; (3) reporting or seeking assistance for an airborne infectious disease exposure concern to the employer or to a government entity or official; or (4) refusing to work due to a reasonable, good faith belief that the work will expose the employee, other workers or the public to an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with applicable law or the minimum model standards, provided that the employer is on notice of the unsafe conditions and has failed to cure them.
Penalties and Civil Right of Action
The law provides for civil penalties up to $20,000 for violations, authorizes the NYSDOL to issue injunctive relief and provides for a private right of action by employees for injunctive relief and, in some cases, attorneys’ fees. The law’s private right of action for employees, which was modified by amendments made to the statute shortly following its enactment, provides redress in situations where the employer’s actions “created a substantial probability that death or serious physical harm could result to the employee” and the employer acted in bad faith or failed to cure a previously raised deficiency. The statute of limitations is six months.
Notably, a prerequisite for an employee to bring a civil action is the provision of notice of the alleged violation. An employee may not bring a civil action until 30 days after providing such notice unless the employee alleges with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith. An employee may not bring a civil action if the employer corrects the alleged violation.
The law also specifically authorizes an award of costs and reasonable attorneys’ fees to the employer where an action brought by an employee “is found, at any time during the proceedings or upon judgment, to be frivolous by the court.”
What This Means for Employers
Employers should be prepared to review the NYSDOL’s model standards when they are published and make note of the implementation obligations and timeline outlined above. Upon review of the model standards, employers should identify key areas of importance to their business operations. A review of these key areas may affect an employers’ decision on whether to adopt the model standards or to develop their own alternative standards.
Employers who elect to develop alternative standards should consider the role that employees will play in their creation and ensure that the plan for their involvement will meet the law’s “meaningful participation” requirement. Further, employers should begin to consider their needs and plan for establishing or modifying a workplace safety committee that meets with the law’s requirements.
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