New York State Enacts the NY HERO Act

New York has passed the New York Health and Essential Rights Act (“NY HERO Act”), which is set to go into effect on June 4, 2021. The NY HERO Act strives to protect workers from airborne diseases, whether they be COVID-19 or other diseases. New York will be the first state in the country to require its Department of Labor (“NYDOL”) to develop industry-specific health and safety standards for private employers to reduce the risk of airborne illnesses for employees. While New York has adopted the Center for Disease Control’s (“CDC”) recent guidance where fully vaccinated individuals will not be required to wear masks in most indoor and outdoor settings by May 19, 2021, the NY HERO Act will still impose certain restrictions on industries and is intended to apply regardless of the removal of any mask mandate. Of course, the NY HERO Act only applies to private businesses, and will not affect mask mandates and other requirements imposed on individuals in public.

Under the NY HERO Act, the NYDOL must develop model standards for industry-specific exposure prevention plans. These model standards will include requirements for health screenings, face coverings, personal protective equipment, hand hygiene stations, breaks for hand hygiene, cleaning and disinfecting of shared equipment and surfaces, social distancing, compliance with quarantine guidelines in-case of exposure, compliance with air flow and exhaust requirements, compliance with local laws, the appointment of supervisory employees to maintain enforcement of these new standards, and regular reviews of employer polices. As these model standards will be industry-specific, it is expected that industries that are considered a higher risk for exposure to airborne diseases will be have more in-depth model standards. Employers will have the choice of adopting the NYDOL-created model standards for their industry or developing their own exposure prevention plans that at a minimum meet the NYDOL-created standards. Employers that elect to create their own exposure prevention plans must develop such plans with their collective bargaining representatives if their employees are unionized, or otherwise include meaningful participation from employees.

Employers will be required to provide employees with copies of their exposure prevention plans and must post copies of such plans in a prominent location on the worksite. Further, employers must include copies within their employee handbooks if they provide such handbooks. Employees will be permitted to establish joint labor-management workplace safety committees, who can review exposure prevention plans, suggest revisions in response to changing conditions and/or laws, and ensure compliance by the employer.

The NY HERO Act includes anti-retaliation provisions. Employers may not retaliate against employees for reporting violations of the NY HERO Act, reporting potential exposures to airborne illnesses, or for refusing to work due to a good faith belief that there is an unreasonable risk of exposure to an airborne illness due to the employers failure to meet the minimum standards set by the NYDOL. In addition to employees having the right to report suspected violations to the NYDOL, the NY HERO Act also gives employees a private right of action to seek injunctive relief against employers in the case of a violation of the Act.
Failure to adopt an exposure prevention plan is punishable by a fine of no less than $50 per day, while violation of adopted standards is punishable by a fine of $1,000 to $10,000.