July 23, 2021 The New York Health and Essential Rights Act & Amendments
KEEPING YOU INFORMED…
Earlier this year, Governor Cuomo signed the New York Health and Essential Rights Act (“HERO Act” or “the Act”), which mandates extensive new workplace health and safety protections for private sector employers with respect to airborne infectious diseases. Subsequently, certain “technical changes” were made to the law, which: (i) clarify the timeline for both employers and the NYS Department of Labor (“DOL”) to develop and implement the required workplace standards; (ii) modify the role of workplace safety committees; and (iii) limit the potential for frivolous lawsuits related to implementing the Act’s requirements.
Below is a summary of the Act and its technical amendments, as well as information pertaining to the recently-published DOL Airborne Infectious Disease Exposure Prevention Standard and Model Airborne Infectious Disease Exposure Prevention Plans.
The HERO Act
The HERO Act sets mandatory minimum standards in an effort to ensure private workplaces are prepared to address possible future airborne infectious diseases. The Act adds two new sections to the New York Labor Law: (1) § 218-b, which governs airborne infectious disease exposure prevention plans and standards; and (2) § 27-d, which governs joint management workplace safety committees. Notwithstanding COVID-19’s status as an “airborne infectious disease,” the DOL has advised that employers’ airborne infectious disease exposure prevention plans are not required to be in effect at this time. Employers do, however, need to prepare, adopt and distribute a plan in accordance with the below deadlines, so that it is ready to be implemented if/when the Commissioner of Health designates that an airborne infectious disease is present that triggers the use of the plan.
Airborne Infectious Disease Exposure Prevention Plan (§ 218-b)
Section 218-b applies to all nongovernmental employers in the State and their employees (including part-time workers) and independent contractors, as well as any individuals working for staffing agencies or making deliveries to the work site (“Covered Individuals”).
Employers must adopt and implement an airborne infectious disease exposure prevention plan for their workplaces that meets or exceeds certain standards. On July 6, 2021, the DOL published its Airborne Infectious Disease Exposure Prevention Standard, as well as Model Airborne Infectious Disease Exposure Prevention Plans for various industries addressing, among other things:
By August 5, 2021, all covered employers must either adopt the applicable Model Plan for their industry or create and implement “an alternative plan that equals or exceeds the minimum standards provided by the model standard.”
If an employer chooses to create an alternative plan, the employer must do so pursuant to an agreement with any union(s) or, for non-unionized workforces, with “meaningful participation of employees.”
Employers must provide a copy of the plan in English or in the language identified as the primary language of the Covered Individuals, if available. The Standard and Model Plan are currently only available in English. The DOL’s website provides that it will publish Spanish documents soon.
Additionally, businesses in operation as of July 5, 2021 must distribute their plan to Covered Individuals by no later than September 4, 2021 (i.e., within 60 days following the DOL’s publication of the Model Standard relevant to the industry).
For all covered employers, the plan must also be distributed to Covered Individuals upon hire as well as within 15 days of reopening after a period of closure due to an airborne infectious disease. It must also be included in any employee handbook (if applicable) and posted in a “visible and prominent location within each work site, other than a vehicle.” Employers must also make copies of the plan available, “upon request, to all employees and independent contractors, employee representatives, collective bargaining representatives,” the Commissioner of Labor and the Commissioner of Health.
The above-mentioned requirements may, however, be waived in a collective bargaining agreement, provided that the agreement explicitly references Labor Law § 218-b.
Employers and their agents are prohibited from discriminating, threatening, retaliating against, or taking adverse action against employees for: (i) exercising their rights pursuant to § 218-b or the applicable airborne infectious disease exposure prevention plan; (ii) “reporting violations of [§ 218-b] or the applicable airborne infectious disease exposure prevention plan to any state, local, or federal government entity, public officer, or elected official;” (iii) “reporting an airborne infectious disease exposure concern to, or seeking assistance or intervention with respect to airborne infectious disease exposure concerns,” to the employee’s employer, state, local, or federal government entity, public officer or elected official; or (iv) refusing to work where the employee reasonably believes, in good faith, that the work exposes the employee, other workers or the public to an unreasonable risk of exposure to an airborne infectious disease due to working conditions that are inconsistent with laws, rules, policies, or orders of a governmental entity (provided that the employee, another employee, or employee representative notified the employer of the inconsistent working conditions and the employer failed to cure the conditions or the employer had or should have had reason to know about the conditions).
Workplace Safety Committees (§ 27-d)
The second section of the Act, § 27-d, takes effect on November 1, 2021, and requires all private-sector employers with ten or more employees to permit employees to establish one joint labor-management workplace safety committee per worksite (“Committee”). If an employer already has a workplace safety committee that is consistent with the requirements of § 27-d, then another committee need not be created.
The Committee will be authorized to, among other things: (i) raise health and safety concerns, hazards, complaints and violations, to which the employer must respond; (ii) review the employer’s airborne infectious disease exposure prevention plan and provide feedback to same (consistent with applicable law); (iii) review the adoption of any policy the employer implements for the workplace “in response to any health or safety law, ordinance, rule, regulation, executive order, or other related directive;” (iv) participate in government entity site visits relating to enforcing workplace health and safety standards; (v) review any employer-filed workplace health and safety-related reports (consistent with applicable law); (vi) regularly schedule Committee meetings during working hours at least once per quarter for up to two hours; and (vii) attend a training “without suffering a loss of pay” for up to four hours addressing “the function of worker safety committees, rights established under [the HERO Act], and an introduction to occupational safety and health.”
Each Committee must be composed of employee and employer designees, at least two-thirds of which must consist of non-supervisory employees who are selected by non-supervisory employees (unless a collective bargaining agreement is in place, in which case the collective bargaining representative selects the employee members). The Committee must be co-chaired by a representative of the employer and a representative of the non-supervisory employees. Employers are prohibited from interfering with the selection of employees to serve on the Committee or with their duties pursuant to § 27-d.
The provisions set forth in § 27-d may be waived in a collective bargaining agreement, provided that the waiver explicitly references Labor Law § 27-d.
Employers are prohibited from retaliating against employees who participate in the activities or establishment of a workplace safety committee.
Civil Penalties and Litigation
Penalties for noncompliance with the Act include a civil penalty of not less than $50 per day for failure to adopt a prevention plan, or not less than $1,000, and up to $10,000, for failure to implement that plan.
An employee may bring a civil action for injunctive relief for alleged violations of the Act and, if successful, may recover attorneys’ fees. Prior to filing a lawsuit, however, an employee must: (i) provide the employer with notice of the alleged violation; and (ii) wait at least 30 days after notice before bringing a cause of action (“except where an employee alleges with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith”). Further, an employee will be precluded from filing a lawsuit alleging violations of the Act where: (i) the employer corrects the alleged violation; or (ii) more than six months have passed from the date that the employee had knowledge of the alleged violation.
If the court finds an employee’s claim frivolous, the court may award to the employer costs and reasonable attorneys’ fees, which may be assessed against the employee, the employee’s attorney, or both, depending on the circumstances.
Employers should review the DOL’s Airborne Infectious Disease Exposure Prevention Standard Model Plan and determine whether to adopt the Model Plan or adopt an alternative plan that meets or exceeds the minimum standards provided by the Model Standard or, in unionized workplaces with a collective bargaining agreement, whether to negotiate with the union(s) a waiver of the Act’s requirements.
If you have any questions regarding the HERO Act’s requirements or would like assistance with preparing your workplace’s airborne infectious disease exposure prevention plan, please contact Alyssa L. Zuckerman (firstname.lastname@example.org), Michelle A. Mahabirsingh (email@example.com), Adam Ross (firstname.lastname@example.org) or one of our other attorneys at 631-694-2300.
 The Act also applies to “individuals working for digital applications or platforms.”
 A “worksite” is “any physical space, including a vehicle (though an employer’s prevention plan need not be posted in a vehicle), that has been designated as the location where work is performed over which an employer has the ability to exercise control.” This term does not include a telecommuting or telework site unless the employer has the ability to exercise control of the site.
 The DOL does not define “meaningful participation of employees.”
 The Act does not describe the actions an employer must take to ensure that this obligation is satisfied. Please contact us if you would like to discuss best practices for implementing this new requirement.
 The Committee may also review “any policy put in place in the workplace required by any provision of [the HERO Act] relating to occupational safety and health” and provide feedback to same. Those other policies are not yet specifically defined.
 The Act does not explain who will provide these trainings or how these trainings must be provided. We anticipate that regulations will eventually be issued addressing this and a multitude of other questions raised by the Act’s provisions.
 The Act provides that “Committees representing geographically distinct worksites may also be formed as necessary.”
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
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