New York State Hero Act is Past Due!

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On May 5, 2021, Governor Andrew Cuomo signed the New York Health and Essential Rights Act (NY HERO Act) into law. The law mandates extensive new workplace health and safety protections in response to the COVID-19 pandemic. The purpose of the NY HERO Act is to protect employees against exposure and disease during a future airborne infectious disease outbreak.

Key Dates

• August 5, 2021: The Airborne Infectious Disease plan was due for most business owners in New York State

• September 4, 2021: Deadline for plans to be communicated to employees

• November 1, 2021: Workplace Safety Committees are implemented

Details

Under this new law, the New York State Department of Labor (NYS DOL), in consultation with the NYS Department of Health, has developed a new Airborne Infectious Disease Exposure Prevention Standard, a Model Airborne Infectious Disease Exposure Prevention Plan, and various industry-specific model plans for the prevention of airborne infectious disease. Employers can choose to adopt the applicable policy template/plan provided by NYS DOL or establish an alternative plan that meets or exceeds the standard’s minimum requirements.

The airborne infectious disease exposure prevention plans must go into effect when an airborne infectious disease is designated by the New York State Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health.

The standard and model prevention plans are currently available in English and will soon be available in Spanish and other languages.

Employers are required to:

1. Provide a copy of the adopted airborne infectious disease exposure prevention plan to their employees
2. Post the plan in a visible and prominent location within each worksite
3. Incorporate the prevention plan into their employee handbook.

Safety Committee

The NY HERO Act also requires employers to allow their employees to create and administer a joint labor-management workplace health and safety committee. These workplace safety committees must be authorized to:

1. Raise health and safety concerns, hazards, complaints and violations to the employer, to which the employer must respond
2. Review and provide feedback concerning issues of occupational health and safety
3. Review the adoption of any policy in the workplace in response to any health or safety law, ordinance, rule, regulation, executive order or other related directive
4. Participate in any worksite visit by a governmental entity responsible for enforcing safety and health standards
5. Review any report filed by the employer related to the health and safety of the workplace
6. Schedule a meeting during work hours at least quarterly

Are there potential fines?

• $50 per day for failing to adopt an appropriate plan

• $1,000 to $10,000 for failing to comply with an adopted plan.

• $200 If an employer violated the law in the previous six years, penalties may increase to per day for failure to implement an appropriate plan

• $1,000 to $20,000 for failure to abide by an adopted plan.

Reference:

1. NYS Department of Labor, NYS Hero Act, July 5 2021 https://dol.ny.gov/ny-hero-act
2. BakerHostetler, Update on the New York Hero Act: What the New York COVID-19 Worker Protection Law Means for Employers, July 21, 2021 https://www.jdsupra.com/post/contentViewerEmbed.aspx?fid=9e143772-736e-4795-b459-cad323c04fea
3. Schnader Harrison Segal & Lewis LLP, New York Hero Act Employers Need to Act by August 5th, August 4 2021 https://www.jdsupra.com/post/contentViewerEmbed.aspx?fid=02fad279-bc18-45d4-b3d3-3895fe71133a