New York HERO Act Requires Employers to Implement New Infectious Disease Plan

October 5, 2021
Updated October 5, 2021. The Commissioner of Health issued a revised designation that extends the designation of COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health” under the HERO Act until October 31, 2021, at which time the Commissioner of Health will determine whether to continue this designation. This revised designation requires employers to continue to implement their airborne infectious disease exposure prevention plans under the HERO Act through October 31, 2021.
 
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Updated September 24, 2021. On September 23, 2021, the DOL updated its Model Airborne Infectious Disease Exposure Prevention Plan (the “Model Plan”). The most notable change to the Model Plan is the loosening of face-covering requirements for employees in workplaces where all individuals on the premises are vaccinated. The Model Plan states that for workplaces where all individuals on the premises are fully vaccinated, appropriate face coverings are recommended, but not required, consistent with State Department of Health and the Centers for Disease Control and Prevention applicable guidance, as of September 16, 2021. The model plan also revised the language on physical distancing to read, “Physical distancing will be used, to the extent feasible, as advised by guidance from State Department of Health or the Centers for Disease Control and Prevention, as applicable.”

For your reference, the NY HERO Act Information and FAQs issued on September 9, 2021, are available here.
 
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Updated September 8, 2021. On September 6, 2021, Governor Kathy Hochul announced that the Commissioner of Health has designated COVID-19 a highly contagious communicable disease that presents a serious risk of harm to the public health under New York State's HERO Act. The DOL updated its website to state, “This designation requires all employers to implement workplace safety plans” under the HERO Act. The below post details the steps employers must take in response to this designation.
 
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Updated July 13, 2021. On June 14, 2021, New York amended the Health and Essential Rights Act (“HERO Act”) to, among other things, provide additional time for the New York Department of Labor (“DOL”) to establish model safety standards to govern employers’ airborne infectious disease exposure plans and to provide employers with additional time to comply with those standards once published. The amendments also made other changes to the law, including limiting the scope of the private right of action created by the HERO Act.

On or around July 5, 2021, the DOL published its Airborne Infectious Disease Exposure Prevention Standard (the “Standards”), a Model Airborne Infectious Disease Exposure Prevention Plan (the “Model Plan”), and various industry-specific model plans. The DOL also clarified that “while employers must adopt plans as required by the law . . . plans are not required to be in effect” because no applicable airborne infectious disease designation has been issued by the Commissioner of Health. These updates have been incorporated into the below post.

 
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On May 5, 2021, New York Governor Andrew Cuomo signed the HERO Act, which among other things requires employers to adopt a plan for airborne infectious disease exposure prevention; creates a private right of action for employees to sue for violations of such a plan in certain circumstances; and permits the establishment of joint labor-management workplace safety committees for employers with 10 or more employees. On June 14, 2021, New York amended the HERO Act to, among other things, provide additional time for the DOL to implement the law and to provide employers with additional time to comply.

On or around July 5, 2021, the DOL released the Standards and the Model Plan. As described below, employers have 30 days to establish an airborne infectious disease exposure prevention plan (“Employer Plan”) by adopting either the Standards or an alternative plan that equals or exceeds the minimum requirements of the Standards. Notably, the DOL has issued limited guidance that “while employers must adopt plans as required by the law . . . plans are not required to be in effect” because no applicable airborne infectious disease designation has been issued by the Commissioner of Health. DOL further provided that it “will be sharing more details about this law in the near future.”
 

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Airborne Infectious Disease Exposure Prevention Standards

On or around July 5, 2021, DOL published the Standards, as well as industry-specific standards for the following industries: agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail.

The Standards do not apply to “[a]ny seasonal or endemic infectious agent or disease, such as the seasonal flu, that has not been designated by the Commissioner of Health as a highly contagious communicable disease,” nor to “[a]ny employee within the coverage of a temporary or permanent standard adopted by the Occupational Safety and Health Administration setting forth applicable standards regarding COVID-19 and/or airborne infectious agents and diseases.”

Timing. By August 4, 2021 (30 days after the DOL published the Standards), all employers, regardless of size, will be required to establish an airborne infectious disease exposure prevention plan (“Employer Plan”), which equals or exceeds the minimum requirements of the Standards. Although the Employer Plans must be established by August 4, 2021, the obligations of such Employer Plans will not go into effect until the Commissioner of Health designates an airborne infectious disease as one that is “a highly contagious communicable disease that presents a serious risk of harm to the public health.”

Notice to Employees. Employers that are currently “permitted to operate” must provide their Employer Plan to all employees by September 3, 2021 (60 days after DOL published the standards), and otherwise must provide their Employer Plans to all employees (i) within 30 days after adoption of the plan; (ii) within 15 days after reopening after a period of closure due to airborne infectious disease; and (iii) to all newly hired employees upon hiring. Employer Plans must also be “posted in a visible and prominent location within the worksite,” and, if an employer has an employee handbook, included therein as well. Employer Plans must also be made available upon request to all employees, and employers are required to conduct a “verbal review” of the Employer Plan and the employee rights under the HERO Act.

Requirements. Employer Plans are “written exposure prevention plan[s] designed to eliminate or minimize employee exposure to airborne infectious agents in the event of an outbreak of an airborne infectious disease.” Employer Plans must meet or exceed the minimum requirements of the Standards, and any applicable industry-specific guidance. Employer plans must be reviewed and updated “whenever necessary to reflect new or modified tasks and procedures . . . and to reflect new or modified employee assignments.”

Employers that do not adopt the Model Plans are required to develop their own plans “pursuant to an agreement with the collective bargaining representative, if any, or with the meaningful participation of employees where there is no collective bargaining representative, for all aspects of the plan, and such plan shall be tailored and specific to the hazards in the specific industry and worksites of the employer.”

When a highly contagious communicable disease is designated by the Commissioner of Health as presenting a serious risk of harm to the public health, employers must:
  • Immediately review and update the Employer Plan, if necessary, to ensure that it incorporates current information, guidance, and mandatory requirements issued by federal, state, or local governments related to the infectious agent of concern;
  • Finalize and promptly activate the Employer Plan;
  • Provide the verbal review discussed above; and
  • Provide each employee with a copy of the Employer Plan, post a copy of the exposure prevention plan in a visible and prominent location at the worksite (except when the worksite is a vehicle), and ensure that a copy of the Employer Plan is accessible to employees during all work shifts.
Thereafter, while the designation remains in effect, employers must designate one or more supervisory employees to enforce compliance with the Employer Plan, the Standard, and any other federal, state, or local guidance related to avoidance of spreading an airborne infectious disease. This employee should be responsible for monitoring and maintaining exposure controls and regularly checking for updated information and guidance, so that the Employer Plan reflects recommended control measures. Non-supervisory employees may not oversee compliance with the requirements of the Employer Plan.

Exposure Controls. The Standards require Employer Plans to “select and obtain appropriate exposure controls based on the types and level of exposure risks employees have during all activities performed at the worksite,” including by providing for:
  • Health screenings;
  • Face coverings;
  • Physical distancing;
  • Hand hygiene facilities;
  • Cleaning and disinfection; and
  • Personal protective equipment.
The Standards provide detailed guidance as to each of these controls.

No Retaliation. Employers may not retaliate against employees for exercising their rights under the HERO Act or an Employer Plan, reporting violations thereof, reporting an airborne infectious disease exposure concern, or refusing to work where an employee “reasonably believes, in good faith, that such work exposes him or her, or other workers or the public, to an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with laws, rules, policies, [or] orders of any governmental entity,” so long as the employer is notified of the inconsistent working conditions and the employer failed to cure the conditions, or if the employer had or should have had reason to know about the inconsistent working conditions and maintained the inconsistent working conditions.

The Standards require that, to the extent that records exist between an employer and employee regarding a potential risk of exposure, they shall be maintained by the employer for two years after the conclusion of the designation of a high-risk disease from the Commissioner of Health.

Penalties. If, after investigation, the DOL determines that an employer has violated any provision of the HERO Act, the DOL may assess a civil penalty of at least $50 per day for failing to adopt an Employer Plan, and between $1,000 – $10,000 (or $20,000, if the DOL finds that an employer has violated the HERO Act in the preceding six years) for failing to abide by an Employer Plan. The DOL may also order “other appropriate relief,” such as an order enjoining the conduct of an employer.

Employees May Bring a Private Right of Action for Non-Compliance

In addition to civil fines, the HERO Act also allows employees to bring civil actions against an employer alleged to have violated an Employer Plan “in a manner that creates a substantial probability that death or serious physical harm could result to the employee from a condition which exists, or from one or more practices, means, methods, operations or processes which have been adopted or are in use, by the employer at the worksite, unless the employer did not and could not, with the exercise of reasonable diligence, know of the presence of the violation.” An employee may not bring such an action “until thirty days after giving the employer notice of the alleged violation, except where an employee alleges with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith.” Employees may not bring a civil action “if the employer corrects the alleged violation.” Such claims must be brought “within six months from the date the employee had knowledge of the violation.” Courts may issue injunctive relief and award costs and reasonable attorneys’ fees.

An employer may defend on the ground that it had a “good faith basis to believe that the established health and safety measures were in compliance with the applicable airborne infectious disease standard.”

If an action brought by an employee is found to be frivolous, the court may award the employer’s costs and reasonable attorney’s fees, which may be assessed either against the employee, their attorney, or both.

Joint Labor-Management Workplace Safety Committee

After November 1, 2021, the HERO Act requires employers with at least 10 employees to “permit employees to establish and administer a joint labor-management workplace safety committee,” which is composed of employer and employee designees, at least two-thirds of whom must be non-supervisory employees. Employee members must be selected by, and from among, non-supervisory employees. The workplace safety committees must be co-chaired by one representative of the employer, and one representative of the non-supervisory employees. Additional workplace safety committees representing geographically distinct work sites may be formed “as necessary.”

Workplace safety committees are authorized to:
  • Raise health and safety concerns, hazards, complaints, and violations to the employer, to which the employer must respond;
  • Review any policy put in place in the workplace that is required by the HERO Act, or any provision of the workers compensation law, and provide feedback on such policy in a manner consistent with any provision of law;
  • 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;• Participate in any site visit by any governmental entity responsible for enforcing safety and health standards in a manner consistent with any provision of law;
  • Review any report filed by the employer related to the health and safety of the workplace in a manner consistent with any provision of law; and
  • Regularly schedule a meeting during work hours at least once a quarter.
Employers must permit workplace safety committee designees, without suffering a loss of pay, to attend a training “on the function of worker safety committees, rights established under [the HERO Act], and an introduction to occupational safety and health.” Employers may not retaliate against employees “for any actions taken pursuant to their participation” on a workplace safety committee.
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The Coronavirus situation is fluid, and laws are changing rapidly. Our recent memoranda and other information discussing various aspects of Coronavirus can be found here.
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