By Tracey I. Levy and Alexandra Lapes

Note Important Update below.

Responding to the perceived lack of sufficient worker protections issued by OSHA and frustration with the lack of federal leadership in the prior presidential administration with regard to COVID-19 safety measures, New York State adopted the Health and Essential Rights (“HERO”) Act, which mandates a plethora of new safety standards for all employers.  The HERO Act officially takes effect June 4, 2021, but the Act itself only enumerates the 11 elements of an employer safety plan and leaves it to the New York State Department of Labor (DOL), in consultation with the Department of Health (DOH), to actually develop a model airborne infectious disease exposure prevention plan, with industry-specific standards, that will set the minimum standard for each of the 11 elements of the safety plan.  To this point the DOL/DOH have not issued the model plan or any guidance on the new safety standards.

For employers with more than 10 employees, effective November 1, 2021 the HERO Act will additionally borrow a concept that may be familiar to unionized workplaces, and permit employees to establish and administer a joint labor-management workplace safety committee.  If requested, the members of such a committee must be at least two-thirds non-supervisory employees, and the committee must be co-chaired by a representative of the employer and a non-supervisory employee.  The purpose of the safety committee is to adopt workplace safety standards, develop ways for reporting concerns, review applicable policies, participate in site visits by government health and safety officials, and review any reports filed by the employer related to health and safety.  The committee is expected to meet at least quarterly, during work hours.  Employers cannot interfere with the selection of committee members and must pay committee members for time spent attending training on safety standards.

As with so many new employment law obligations, the HERO Act prohibits employers from discriminating or retaliating against employees who seek to enforce the rights provided under the law.

What NY Employers Need to Do Now

The model safety plan will cover the following eleven 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.

Most, if not all, of these are already significant considerations that employers have been working through over the course of the pandemic as they have sought to maintain/reopen their workplaces and protect the safety of their employees, clients, customers and visitors.  Any New York employer that thought that widespread vaccinations might bring an end to these measures should reassess their approach and continue with workplace operational plans that consider the latest guidance from the Centers for Disease Control and New York State on all 11 of these elements, pending more definitive guidance from DOL/DOH.  Employers should compile a written document (their own “safety plan”) that memorializes their approach with regard to each of the 11 elements.

Notably, once a model safety plan has been developed by the state, employers will either need to adopt that plan, or compare it against their own written safety plan to ensure the employer’s plan meets or exceeds all elements of the state’s model safety plan.  Employers will be required to provide a copy of their written safety plan to all employees, in English and any other primary language, at multiple times/in multiple formats:

• as of the first opportunity, be that the effective date of the Act, upon hire, or upon the employee’s return to the workplace;
• as a workplace posting in a visible location;
• in the employee handbook (if the employer has one); and
• whenever requested by the employee.

One of the most publicized and challenging aspects of the HERO Act for employers is that it imposes significant enforcement provisions:

• hefty fines and monetary penalties, and
• empowering individual employees to sue for non-compliance and seek both a court order forcing compliance with the law, as well as liquidated damages of up to $20,000,

unless the employer can demonstrate good faith attempts to comply.

Proposed amendments to the law, which are currently wending their way through the legislature, reportedly in accordance with an agreement on which the Governor conditioned his signature of the original version of the HERO Act, are intended to lessen the enforcement provisions, extend the deadlines for compliance, and make other clarifications.  If adopted, the amendments will remove the liquidated damages clause and the requirement that the employer demonstrate good faith attempts to comply, and instead require the employee to provide 30 days’ advance notice of a perceived violation to the employer, limiting the right to sue to circumstances in which the employer “demonstrates an unwillingness to cure a violation in bad faith.”  A prevailing employee is entitled to recover reasonable attorneys’ fees and costs under the HERO Act, and the proposed amendments would enable a court to similarly award reasonable attorneys’ fees and costs to a prevailing employer in the event a claimed violation of the Act is found to have been frivolous.  The amendments would further extend the effective date of the law out to July 5, 2021, and grant employers 30 days to draft their own safety plans, beginning as of the date the DOL/DOH issues the model safety plan, plus an additional 30 days to distribute the plan to current employees.

If adopted, the amendments would thereby effectively give employers until around Labor Day to distribute their written safety plans.  While the amendments are still pending, however, employers are left in a somewhat precarious state as the HERO Act technically requires immediate development and distribution of a written safety plan, but the required elements of that plan have not yet been defined and, even once issued, it will take employers some time to review and incorporate them.

Important Update as of 6/15/21: The New York State legislature passed the amendments to the HERO Act, thereby delaying the deadline for compliance and lessening the enforcement provisions.