Last week Gov. Andrew Cuomo (D) signed the New York Health and Essential Rights (HERO) Act into law. The HERO Act is intended to prevent the spread of COVID-19 and other airborne diseases in the workplace. Although the Act has a noble intention, it creates serious compliance challenges for employers.
The HERO Act has two parts: The first part requires employers to implement an airborne infectious disease exposure prevention plan, and the second part requires employers to allow the formation of a joint labor-management workplace safety committee.
With respect to the workplace safety committee requirement, it is important to note that an employer’s formation of and dealing with an employee safety committee may raise legal issues under the federal National Labor Relations Act. It remains to be seen whether employers will challenge this part of the statute and what the National Labor Relations Board or courts will say.
These FAQs will tell you what we know now about the Safety Plan and Safety Committee Rules of the HERO Act. To keep things simple, we will refer to the first part as the “Safety Plan Rule” and the second part as the “Safety Committee Rule.”
SAFETY PLAN RULE
What is the effective date?
June 4, 2021.
Who is covered?
All private employers in New York State, regardless of size.
Does the Safety Plan apply only to COVID?
No. It applies to any viral, bacterial, or fungal disease that is spread through the air in the form of aerosol particles or droplets, and that is designated by the New York State Department of Health as a highly contagious disease.
Will there be a model Safety Plan?
Yes. The New York State Department of Labor will work with the NYSDOH to create a model Safety Plan in English and Spanish. The model Safety Plan will be broken down by industry similar to the guidance issued as part of the 2020 Reopening New York plan.
What will the model Safety Plan include?
The Model Safety Plan will cover 11 topics: (1) employee health screenings, (2) face coverings, (3) personal protective equipment provided at the employer’s expense, (4) hand washing and breaks for hand washing, (5) cleaning shared equipment and other frequently touched surfaces, (6) social distancing, (7) quarantine orders, (8) engineering controls such as air flow and ventilation, (9) designated supervisor(s) to enforce safety standards, (10) compliance with notice requirements to employees and government officials, and (11) verbal review of safety standards, employer policies, and employee rights.
Do employers have to adopt the model Safety Plan?
No. Employers can establish their own plans as long as the plans are industry specific and meet or exceed the standards in the model Safety Plan. If an employer adopts its own plan, it must consult with the employees’ bargaining representative or, if no representative, then directly with employees.
Do employers have to give employees a copy of the Safety Plan?
Yes. Employers must provide the Safety Plan to all current employees on June 4, to new employees upon hire, and to all employees if there is a workplace closure due to an outbreak. The Safety Plan must be provided to employees in English and their primary language (if not English).
Do employers have to post a copy of the Safety Plan?
Yes. Employers must post a copy in a visible and prominent location within the workplace.
Do employers have to add the Safety Plan to their employee handbooks?
Yes, but only if they have employee handbooks.
Is there an anti-retaliation provision?
Yes. It is quite broad and prohibits retaliation against employees who exercise rights under the HERO Act, report violations of the Safety Plan, report disease exposure concerns or seek assistance or intervention with respect to disease exposure concerns, or refuse to return to work if they reasonably believe in good faith that they will expose themselves, their coworkers, or the public to a disease (subject to certain conditions).
What about collective bargaining agreements?
CBAs can waive the Safety Plan rule as long as they explicitly reference the HERO Act.
Can the NYSDOL issue fines for non-compliance?
Yes. The NYSDOL can fine an employer $50 per day for failure to adopt a Safety Plan. The fine for failure to abide by the Safety Plan is $1,000 to $10,000. If the employer has had another violation of the HERO Act in the past six years, however, the NYDOL can issue larger fines.
Can employees sue their employers for non-compliance?
Yes. Employees can sue if the employer has violated the Safety Plan and there is a substantial probability of death or serious physical harm that could result from the violation. But employers are not liable if they did not know, and could not have known with reasonable diligence, of the violation.
How much can employees recover in damages if they win?
In addition to injunctive relief, employees can recover court costs, attorneys’ fees, and liquidated damages of no more than $20,000. Employers can escape these damages if they are able to prove that their safety measures complied with the applicable standards.
Do employers have any protection against frivolous lawsuits?
Yes. Courts can impose sanctions against employees or their attorneys if they file a lawsuit that is completely meritless and intended to harass and injure.
SAFETY COMMITTEE RULE
What is the effective date?
November 1, 2021.
Who is covered?
All private employers in New York State with 10 or more employees. The wording of the statute is not entirely clear, but it appears that an employer with fewer than 10 employees in New York State would still be covered if its total number of employees – including out-of-state employees – were 10 or more.
What is required?
Employers must allow employees to establish a Safety Committee composed of at least two-thirds non-supervisory employees. The Safety Committee is co-chaired by a representative of the employer and non-supervisory employees. An employer cannot interfere with the Safety Committee members’ performance of their duties.
(As noted above, an employer's formation of and dealing with an employee safety committee may raise issues under the NLRA.)
Who selects the non-supervisory employees on the Safety Committee?
The non-supervisory employees themselves, not the employer.
Can an employer have different Safety Committees for geographically distinct work sites?
Yes.
What exactly does the Safety Committee do?
The Safety Committee does six things: (1) raise health and safety concerns to the employer to which the employer must respond, (2) review the employer’s health and safety policy, (3) review the adoption of any policy in response to any health and safety law, (4) participate in any site visit by government health and safety officials, (5) review any report filed by the employer related to health and safety, and (6) attend quarterly meetings during work hours.
What about training for the Safety Committee members?
Employers must allow employees without loss of pay to attend training on the function of the Safety Committee and on an introduction to occupational safety and health.
Is there an anti-retaliation provision?
Yes. An employer cannot retaliate against an employee who participates in a Safety Committee.
What about collective bargaining agreements?
CBAs can waive the Safety Committee rule as long as they explicitly reference the HERO Act.
RECOMMENDATIONS FOR EMPLOYERS
As you can see, the HERO Act imposes numerous and difficult requirements on New York employers. So what should employers do now other than taking some Tums for their heartburn? We recommend the following:
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Evaluate existing return-to-work plans based on the soon-to-be-released model Safety Plan. Employers can review the industry-specific “Reopening New York” guidance mentioned above to get a preview of what might be in the model Safety Plan.
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Plan on allocating a larger segment of your operating budget expenses to compliance, including costs of providing employees with PPE, cleaning and maintenance costs, installation of HVACs and other air filtration systems, etc.
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Anticipate adding the Safety Plan to the employee handbook if you have a handbook.
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Consider adopting a hybrid model of in-person and work-from-home to make compliance with requirements such as social distancing easier.
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Review existing Employment Practices Liability Insurance policies to see whether they will cover claims by employees under the HERO Act.
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Create a system for employees to select the members of the Safety Committee.
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Be on the lookout for regulations from the NYSDOL.
As always, please contact the attorneys in Constangy’s New York City Office if you have any questions about the HERO Act.
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