When Gov. Andrew M. Cuomo signed the New York Health and Essential Rights Act—also known as the NY HERO Act—in May, he promised that there would be chapter amendments to ease the regulatory burden for many businesses. Earlier this week, Cuomo signed those chapter amendments into law.
What is the NY HERO Act?
The NY HERO Act is intended to prevent current and future exposure to airborne infectious diseases at the workplace. The law requires the New York State Department of Labor, in consultation with the New York State Department of Health, to create and publish a general model airborne infectious disease exposure standard for all worksites. Additionally, industry-specific guidelines can and will be drafted, for appropriate circumstances.
The guidelines are meant to establish the minimum requirements for preventing exposure to airborne infectious diseases in the workplace, and they need to address certain key areas, including:
- employee health screenings;
- use of face coverings;
- use of personal protective equipment;
- the availability of hand-hygiene stations;
- regularity of cleaning and disinfecting of shared equipment, and frequently touched surfaces; and
- use of effective social distancing for employees and customers.
In addition to:
- designating supervisory employees(s)to enforce compliance with the airborne infectious disease exposure prevention plan; and
- conducting a verbal review of infectious disease standard, employer policies and employee rights
employers also need to comply with:
- mandatory or precautionary orders of isolation or quarantine that have been issued to employees;
- applicable ventilation controls and design requirements; and
- any applicable notification rules regarding potential exposure to airborne infectious disease at the worksite.
Originally, the guidelines were required to be released by June 4, 2021. However, the chapter amendments moved that deadline to Monday, July 5, 2021.
How to comply
The model standards. Once the DOL guidelines are published, employers will have 30 days to either adopt one of the DOL’s model standards applicable to their industry, or 30 days to develop and establish their own airborne infectious disease exposure prevention plan that meets or exceeds the minimum standards that the DOL’s model standard has set.
Since the DOL is doing the work already, PIANY recommends agencies to adopt the DOL model for their own.
Notices to employees. Employers also must provide written copies of the adopted prevention plan to their employees. All businesses established on or before Monday, July 5, 2021, have 60 days—30 days after the DOL is set to publish its model standards—to provide copies of the adopted prevention plan to their employees.
Businesses established after Monday, July 5, 2021, will have 30 days after the adoption of their prevention plan to share it will employees.
All newly hired employees must be provided with the prevention plan when they are hired, assuming the prevention plan has been established.
Any employer that utilizes an employee handbook should include the airborne infectious disease exposure prevention plan in it. PIA members have access to HR Info Central—an in-depth guide to learn about employee handbooks, manuals and other resources including how to train new employees, supervisors and managers, and welcoming and onboarding new employees. HR Info Central will help guide you in establishing an employee handbook if you don’t already have one.
The plan must be posted in a visible and prominent location. Wherever you keep your other required posters will suffice.
And, if a business closes because of an airborne infectious disease, the employer must provide its employees with the prevention plan within 15 days after the business reopens.
The new law also protects employees from retaliation if they exercise their rights under this law. These rights include:
- reporting violations of this law or of the infectious disease exposure prevention plan to government officials;
- reporting an airborne infectious disease exposure concerns government officials; and
- refusing to work when 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 infectious disease exposure prevention plan.
It must be noted that this last protection is only available if an employer has been notified of the unsafe working condition and has failed to correct it.
Failure to comply with the NY HERO Act
If a business does not comply with the NY HERO Act by the deadline, the DOL is permitted to fine the business civil penalties of $50 per day, for every day that the business doesn’t adopt an airborne infectious disease exposure prevention plan. Additionally, failure to abide by an adopted airborne infectious disease exposure prevention plan could result in fines of up to $10,000.
Bradford J. Lachut, Esq.
Bradford J. Lachut, Esq., joined PIA as government affairs counsel for the Government & Industry Affairs Department in 2012 and then, after a four-month leave, he returned to the association in 2018 as director of government & industry affairs responsible for all legal, government relations and insurance industry liaison programs for the five state associations. Prior to PIA, Brad worked as an attorney for Steven J. Baum PC, in Amherst, and as an associate attorney for the law office of James Morris in Buffalo. He also spent time serving as senior manager of government affairs as the Buffalo Niagara Partnership, a chamber of commerce serving the Buffalo, N.Y., region, his hometown. He received his juris doctorate from Buffalo Law School and his Bachelor of Science degree in Government and Politics from Utica College, Utica, N.Y. Brad is an active Mason and Shriner.