An Infectious Disease Prevention Plan and Workplace Safety Committee: Two New Significant Requirements Under New York’s HERO Act

On May 5, 2021, Governor Cuomo of New York signed the New York Health and Essential Rights Act (the “Act”) into law which amends the New York Labor Law. The Act creates occupational safety and health standards in the private sector for all airborne infectious diseases, including but not limited to COVID-19. While some of the Act’s obligations on New York employers are responsive to general concerns surrounding return-to-work during the COVID-19 pandemic, there are significant additional obligations. Such as developing an airborne infectious disease exposure prevention plan and creating a joint employer-employee workplace health and safety committee.

The Act defines “employee” broadly to include individuals providing services for remuneration and specifically includes part-time workers, independent contractors, domestic workers, home care and personal care workers, day laborers, farmworkers, and other temporary and seasonal workers.

Under the Act, the New York State Commissioner of Labor is required to create and publish a model airborne infectious disease prevention plan and to establish minimum standards for preventing exposure to airborne infectious disease in areas including employee health screenings; face coverings; personal protective equipment; hygiene; cleaning and disinfecting of shared equipment; social distancing; and mandatory and precautionary isolation or quarantine orders, among others. These model prevention plans will be industry-specific and this section takes effect on June 4, 2021, and applies to employers of all sizes. 

New York employers will be required to adopt the model prevention plan or develop their plan that exceeds or equals the minimum standards of the model plan. Employers must post the applicable prevention plan and include it in an employee handbook if one exists. In addition, employers are required to distribute the prevention plan in English and the employee’s language upon hire and upon reopening after a period of closure due to an airborne infectious disease.

As referenced above, the Act also requires employers to establish a joint workplace safety committee with their employees who must have “meaningful” participation. These committees must be compromised of employee and employer designees, with at least two-thirds being non-supervisory employees.  Committee members must be provided training, without loss of pay, on the function of the worker safety committee and an introduction to occupational safety and health.  If there is a collective bargaining agreement in place, the collective bargaining representative will be responsible for selecting employees to serve as committee members.  Committees are required to schedule meetings at least once a quarter during working hours. This section of the law takes effect on November 1, 2021, and applies to private employers with at least ten employees. 

The Act provides civil penalties, including up to twenty thousand dollars for failure to abide by an adopted airborne infectious disease exposure prevention plan. The Act also creates a private right of action for employees to seek injunctive relief, attorney’s fees, and liquidated damages for violations.  However, the Act does caution that frivolous claims may result in sanctions. 

The Act contains significant anti-retaliation provisions, which prohibit retaliation against employees for exercising their rights under the law. Reporting violations of airborne infectious disease exposure to government entities; reporting an airborne infectious disease exposure to their employers or government entities; and refusing to work when an employee reasonably believes that doing so poses an unreasonable risk of exposure under certain circumstances.

Business advocate groups or industry trade associations should consider legal challenges to whether the Act, in whole or in part, should be preempted under OSHA especially given the private right of action, which does not exist under OSHA. Although OSHA currently does not have an infectious disease standard, it is expected to publish a COVID-19 temporary emergency standard (“ETS”) later this month. It is widely expected such an ETS would address many of the topics covered under the Act. In addition, OSHA already has existing standards addressing personal protective equipment and a respirator standard. 

Subject to a successful legal challenge, New York employers should immediately review and revise their current safety and health practices. As well as take steps to comply with these significant burdens before the applicable effective dates which should include monitoring the New York State Department of Labor website for publication of the model policy.

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