Farmingdale Chamber Of Commerce: New York Health And Essential Rights Act (''HERO'' Act)- What Employers Need To Know

Press release from the Farmingdale Chamber of Commerce:

June 10, 2021

Recently, the New York Health and Essential Rights Act (“HERO Act”) was signed into law by Governor Cuomo. The HERO Act amends the labor law to establish workplace protections regarding airborne infectious diseases. Though the HERO Act was passed in response to the COVID-19 pandemic, it establishes a standard for airborne infectious diseases moving forward. The HERO Act will require employer preparation and action across all industries.
 
Section 1 of the HERO Act, §218-b, is effective as of June 4, 2021. Section 2, §27-d, will become effective on November 1, 2021.
 
What does §218-b require?

The HERO Act establishes minimum requirements for developing and enforcing an airborne infectious disease prevention plan. The Commissioner of the New York Department of Labor (“NYDOL”) will develop a model industry-specific standard prevention plan within 30 days of the passage of the HERO Act. To date, the NYDOL has not issued any model prevention plans.  Minimum requirements will include:

• Employee health screenings
• Face coverings
• Industry-specific personal protective equipment
• Accessible handwashing and hygiene stations
• Regular disinfection of shared equipment
• Social distancing
• Compliance with quarantine and isolation requirements
• Compliance with proper engineering controls for air flow and ventilation
• Designation of a supervisory employee to enforce compliance with the prevention plan
• Verbal review of the infectious disease standard, and employer/employee rights and policies

 
Next, the HERO Act requires every employer to adopt an airborne infectious disease prevention plan. An employer may adopt the model standard or establish an alternative prevention plan that is equal to or exceeds the model. If an employer elects to establish an alternative prevention plan, it must be industry specific. Additionally, the alternative prevention plan must be developed with the collective bargaining representative, if there is one, or with employee participation.
 
The adopted prevention plan must be communicated to employees (current and future) in all of the following ways:

• Providing the plan in writing to employees upon re-opening or hire
• Posting the plan in a visible and prominent location in the workplace
• Updating the employee handbook to include the prevention plan
• Making the prevention plan available upon request

 
Employers are prohibited from discriminating, threatening, retaliating, or taking adverse action against employees who report their concerns regarding the prevention plan or exposure; report violations of the HERO Act; or refuse to work where the employees reasonably believe there is an unreasonable risk of exposure, provided the employer has been notified of the violation and failed to take action.
 
Finally, the HERO Act enables employees to bring a civil suit for injunctive relief against the employer, unless the employer could not have known about the violation using reasonable due diligence.
 
What does §27-d require?

§27-d permits employees to establish workplace safety committees. These committees must be composed of employee and employer designees. Two-thirds of the committee must be non-supervisory employees, and the committee members must be selected by non-supervisory employees.
 
The workplace committee’s and designees’ tasks may include, but are not limited to:

• Raising health and safety concerns, hazards, complaints, and violations with the employer
• Reviewing and providing feedback for any workplace policy in response to health and safety law, ordinance, rule, regulation, executive order, or related directives
• Participating in site visits by government representatives enforcing the standards
• Reviewing reports filed to the employers related to the health and safety of the workplace
• Scheduling at least one meeting per quarter, during work hours

 Employers must permit members to attend a committee training without withholding pay, and may not retaliate against members for their actions taken related to their participation on the committee.
 
What are the implications and next steps for employers? 
If the Commissioner finds a violation of the HERO Act, the employer may be penalized a minimum of $50 per day for failure to adopt a prevention plan or $1,000 - $10,000 for failure to abide by a prevention plan.
 
Employers should prepare to adopt the model airborne disease prevention plan or develop an alternative plan, update employee handbooks accordingly, and facilitate trainings and effective communication with employees. Ultimately, the goal of the HERO Act is to make employees feel safe and protected while returning to the workplace.  Westerman Ball’s Labor & Employment Practice Group is here to answer any questions and guide employers through the implementation process of the HERO Act.  Call: (516) 622-9200

This press release was produced by the Farmingdale Chamber of Commerce. The views expressed here are the author’s own.