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On June 11, 2021, Governor Cuomo signed Senate Bill S6768, amending certain provisions of the New York Health and Essential Rights Act (the “HERO Act”). The HERO Act requires most New York employers to create airborne infectious disease prevention plans, and employers with at least 10 employees to permit their employees to establish joint labor-management workplace safety committees.

What Does the HERO Act Require?

New York Labor Law § 218-b requires New York employers to create an airborne infectious disease exposure prevention plan by August 6, 2021. Employers may use the industry-specific model plans provided by the New York State Department of Labor (“NYSDOL”) or create their own plan that meets or exceeds the NYSDOL’s minimum industry-specific standards and requirements. If an employer with union employees elects to create its own plan, the plan must be created in consultation with collective bargaining representatives. For non-union workforces, the employer must create the plan with employee participation.

Employers who were operating on July 5, 2021, must provide a copy of the airborne infectious disease exposure prevention plan to their employees by September 5, 2021, and also upon reopening after any period of closure due to airborne infectious disease, and to newly hired employees upon hiring. A written copy of the plan must be provided to employees in English and in an employee’s primary language, if the NYSDOL has published a model plan in the employee’s primary language.

On July 7, 2021, the NYSDOL made available the airborne infectious disease exposure prevention safety standards and industry-specific model prevention plans. The safety standards and model plans are available on the NYSDOL website: https://dol.ny.gov/ny-hero-act. The safety standards, which are very similar to the former “New York Forward” safety guidance that was recently mostly withdrawn, establish requirements on numerous procedures and methods, including but not limited to, employee health screenings, face coverings, personal protective equipment (“PPE”), accessible hand hygiene stations, regular cleaning and disinfecting, and physical distancing. The published model plans include the following specific industries (in addition to the generic model plan): agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail.

Currently, the model plans are only published in English but the NYSDOL has indicated that the model plans will soon be available in Spanish. Employers must prominently post their health and safety plan at each worksite and include the plan in the company’s employee handbook. Employers must also verbally review with its employees all company policies and employee rights pursuant to the HERO Act, as well as the employer’s safety plan. Pursuant to the NYSDOL guidance, the verbal review should be provided in a manner most suitable for the prevention of airborne infectious diseases, whether in-person in a well-ventilated environment with appropriate face masks or PPE, or remotely via audio or video conferencing.

As described below, as of the date of this article the New York commissioner of health has not yet designated COVID-19 as an airborne disease that would trigger the application of the HERO Act – so while employers must adopt and circulate an airborne pathogen prevention plan, that plan does not yet need to be “activated.”

Key Definitions to Know

The HERO Act defines “airborne infectious diseases” as “any infectious viral, bacterial or fungal disease that is transmissible through the air in the form of aerosol particles or droplets and is designated by the commissioner of health a highly contagious communicable disease that presents a serious risk of harm to the public health.” (emphasis added). Currently, the New York commissioner of health has not designated COVID-19, or any other disease, as an airborne infectious disease. Thus, while employers are required to create a safety plan, they do not need to put the plan into effect with respect to COVID-19 until the commissioner of health makes such a designation.

Notably, the HERO Act’s definition of “employee” includes, among other things, independent contractors and individuals working for staffing agencies.

Furthermore, we observe that the Act’s definition of “worksite” limits it to “the location where work is performed over which an employer has the ability to exercise control.” The amended HERO Act specifically excludes telecommuting or telework sites from the definition of a worksite unless the employer has the ability to exercise control over the site.

We anticipate the NYSDOL will issue further guidance and regulations clarifying provisions of the HERO Act, including the Act’s definitions and the concept of exercising “control” over a given worksite.

Claims for Violations of the HERO Act’s Safety Standards and Notice to Cure

The HERO Act provides a private right of action to employees to seek injunctive relief to remedy violations of the airborne infectious disease exposure prevention plan if the violation “creates a substantial probability that death or serious physical harm” could result to the employee. The amended law states that unless the employee “alleges with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith” the employee must provide the employer with a 30 day notice and an opportunity to cure an alleged violation before the employee is permitted to bring a lawsuit for injunctive relief to cure violations of the safety plan. Once the employer corrects the alleged safety violation, the employee can no longer bring a claim seeking injunctive relief against the employer alleging the safety violation.

A court may award costs and reasonable attorneys’ fees to the employer if the employee’s lawsuit regarding alleged safety violations is deemed to be “frivolous.” The statute of limitations period for claims seeking injunctive relief alleging violations of the safety standards is six months from the date the employee had knowledge of the alleged safety violation. Note that this shortened statute of limitations period does not apply to claims of retaliation under the HERO Act. Finally, the HERO Act provides the NYSDOL with the authority to investigate violations of the Act, issue civil penalties, and issue an order enjoining the conduct.

Anti-Retaliation Provisions

The HERO Act also prohibits employers from discriminating or retaliating against employees for (1) exercising their rights under the HERO Act or the employer’s airborne infectious disease exposure prevention plan; (2) reporting to their employer, a government entity, a public officer, or an elected official violations or exposure concerns about an airborne infectious disease, the HERO Act, or the employer’s airborne infectious disease prevention plan; or (3) refusing to work if the employee has a “reasonable good faith belief” that working will expose them or others to an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with the laws, rules, policies, or orders of any governmental entity. Before an employee may refuse to work pursuant to the HERO Act, the employer must either first be notified of the inconsistent working conditions and fail to cure them or the employer knew or should have known about the conditions and failed to remedy them.

An employee with a retaliation claim under the HERO Act will have an array of potential remedies under Section 215 of the New York Labor Law, including but not limited to, injunctive relief, liquidated damages, costs and reasonable attorneys’ fees, rehiring or reinstatement, lost compensation, and damages.

Workplace Safety Committees

The HERO Act further provides that by November 1, 2021, New York employers with 10 or more employees must allow their employees to establish and administer a joint labor-management workplace safety committee (one committee per worksite). The committee must be composed of designated employees (or collective bargaining representatives) and employer designees. At least two-thirds of the committee must be composed of non-supervisory employees who are selected by non-supervisory employees. For unionized workforces, the collective bargaining representative will select the employees to serve on the workforce safety committee.

The workplace safety committee must be permitted to, among other things, raise health and safety concerns to the employer, review the employer’s occupational health and safety policies, including disease prevention policies required by the HERO Act, participate in government site visits to the workplace, review reports filed by the employer related to the health and safety of the workplace, meet for no more than two hours at least once per calendar quarter during work hours, and send committee members to attend up to four hours of training sessions relating to the function of the committee and occupational health and safety, without suffering any loss of pay. The NYSDOL website states that additional details about the HERO Act will be published in the near future and we anticipate the additional details to include guidance regarding the workplace safety committees.

What Should Employers Do Now to Comply with the HERO Act?

Employers should

1. prepare an airborne infectious disease exposure prevention plan by August 6, 2021;
2. provide written copies of the plan to employees by September 5, 2021;
3. verbally educate their workforce on the company’s safety plan and policies pursuant to the HERO Act, and employee rights under the Act;
4. revise their employee handbook to incorporate the plan; and
5. post the plan at the worksite as required by the NYSDOL.

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Workplace laws and regulations regarding the COVID-19 pandemic and employer health and safety obligations and requirements are constantly changing. It is critical for employers to work with their legal counsel to understand the new employer requirements pursuant to the HERO Act to ensure they are taking all necessary and appropriate steps to comply with the law. Employers should closely monitor for updates regarding the HERO Act, including the release of additional guidance from the NYSDOL and/or the commissioner of health, the publication of model plans in new languages, and the designation of COVID-19, or any other disease, as an infectious disease covered by the HERO Act.

For more information on the topic discussed, contact:

• Andrew W. Singer  |  singer@thsh.com  |  212-508-6723
• Andrew P. Yacyshyn  |  yacyshyn@thsh.com  |  212-508-6792
• Elizabeth E. Schlissel  |  schlissel@thsh.com  |  212-508-6714
• Jason B. Klimpl  |  klimpl@thsh.com  |  212-508-7529
• Joel A. Klarreich  |  jak@thsh.com  |  212-508-6747
• Stacey A. Usiak  |  usiak@thsh.com  |  212-702-3158