On May 5, 2021, New York Gov. Andrew Cuomo signed the Health and Essential Rights Act (HERO Act) into law. Under the new law, employers are required to implement several workplace safety measures in response to the COVID-19 pandemic.

Airborne infectious disease exposure prevention plan

Section 1 of the act directs the New York Department of Labor (NY DOL) to create and publish model airborne infectious disease exposure prevention standards by June 4, 2021. The standards must be differentiated for each industry and take into account the types of risks present in the workplace. The standards must establish requirements on procedures and methods for several aspects of disease prevention, including but not limited to:

  • Employee health screenings;
  • Face coverings and other personal protective equipment;
  • Accessible workplace hand hygiene stations;
  • Regular cleaning and disinfecting;
  • Effective social distancing; and
  • Compliance with mandatory or precautionary orders of isolation or quarantine issued to employees.

After the NY DOL issues its model standards, each New York employer must choose to either adopt the model standard that applies to its industry or establish its own airborne infectious disease exposure prevention plan that equals or exceeds the model standard. Employers must also provide their airborne infectious disease prevention plan in writing to their employees, include their plan in their employee handbooks and post their plan in a prominent location in the workplace.

Anti-retaliation

The act further provides that no employer may discriminate, threaten, retaliate against or take adverse action against any employee for any of the following:

  • Exercising his or her rights under the law or the applicable airborne infectious disease exposure prevention plan;
  • Reporting violations to any state, local or federal government entity, public officer or elected official;
  • Reporting concerns or seeking assistance with concerns regarding airborne infectious disease exposure to his or her employer or any state, local or federal government entity, public officer or elected official; or
  • Refusing to work where the employee reasonably believes in good faith that he or she is exposed to an unreasonable risk of exposure to an airborne infectious disease.

Joint labor-management workplace safety committees

Section 2 of the law requires New York employers with at least ten employees to permit employees to establish and administer joint labor-management workplace safety committees.  Workplace safety committees will be authorized to:

  • Raise health and safety concerns, hazards, complaints and violations to which the employer must respond;
  • Review and provide feedback on workplace safety policies;
  • Participate in any site visit by a governmental entity responsible for enforcing safety and health standards;
  • Review any report filed by the employer related to health and safety of the workplace; and
  • Regularly schedule meetings during work hours at least once per quarter.

Employers may not retaliate against any employee who participates in the activities or establishment of a workplace safety committee.

Takeaways

New York employers should watch for the NY DOL to issue model airborne infectious disease prevention standards by June 4, 2021 and should prepare to issue and post airborne infectious disease prevention plans and update their handbooks accordingly. In the meantime, New York employers should continue to comply with all state and local safety protocols as employees return to work.

Photo of Abbie Thederahn Abbie Thederahn

As an associate, Abbie assists Porter Wright’s labor and employment lawyers with all aspects of labor and employment law, including regulatory matters as well as litigation.

As a law student, Abbie gained experience as a legal extern with the Ohio Attorney General’s office…

As an associate, Abbie assists Porter Wright’s labor and employment lawyers with all aspects of labor and employment law, including regulatory matters as well as litigation.

As a law student, Abbie gained experience as a legal extern with the Ohio Attorney General’s office, as a judicial extern to the Hon. Christopher A. Boyko of the U.S. District Court for the Northern District of Ohio, and as a summer associate with Porter Wright. She also served as a senior editor of the Case Western Reserve University Law Review.