The NY HERO Act: Employer requirements

July 9, 2021

Gov. Andrew M. Cuomo signed chapter amendments for the New York Health and Essential Rights Act—also known as the NY HERO Act—last month, which ease the regulatory burden for many businesses.

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 has two main sections. The first requires all employers to adopt an airborne infectious disease prevention plan. The second permits employees to establish a joint labor-management workplace safety committee.

The DOL’s prevention standards

As required by the law, the New York State Department of Labor released an Airborne Infectious Disease Exposure Prevention Standard, a model Airborne Infectious Disease Exposure Prevention Plan, and various industry-specific model plans for the prevention of airborne infectious diseases. Employers are required to either adopt the DOL model or establish an alternative plan that meets or exceeds the DOL standards by Thursday, Aug. 5, 2021.

While a plan must be adopted by that date, implementation of the plan is not required unless the New York state commissioner of health designates an airborne infectious disease as a highly contagious communicable disease that presents a serious risk to the public.

The Airborne Infectious Disease Exposure Prevention Standard

The DOL’s Airborne Infectious Disease Exposure Prevention Standard details how an employer should develop an exposure prevention plan, and what exposure controls are required in the plan. While the information in the Prevention Standard applies to all employers, it is especially relevant to employers that decide to develop their own plan. The Prevention Standard should serve as the foundation for any employer-created prevention plan.

If an employer develops its own prevention plan, it must do so either in agreement with a collective bargaining representative or with meaningful participation from employees. Whether the employer makes its own plan or uses the DOL’s standard plan, the plan should be reviewed and updated as necessary.

Notifying your employees

All employers are required to make their exposure prevention plan available to all current employees once the plan is completed—but no later than Saturday, Sept. 4, 2021. And, new employees are required to be provided with a copy of the plan when they are hired.

The plan must be given to employees in writing (electronic or paper), and in the employee’s primary language. Currently, the DOL has developed model plans in English and Spanish. Models for additional languages will be developed. If an employee’s primary language is not English or Spanish, the law allows an employer to provide the plan in English, until such time that the DOL develops a model plan for the employee’s primary language.

If a business is forced to close due to an airborne infectious disease, the plan must be provided to all employees within 15 days after reopening. This is required regardless of whether the plan had been provided in the past.

And, there are several other instances when an employer is required to provide a copy of the prevention plan. The prevention plan should be posted in a visible and prominent area at each of the employer’s worksites. PIANY recommends posting the plan in break rooms, kitchens or meeting areas.

Additionally, the plan must be included in the organization’s employee handbook, if it uses one. Coincidently, providing new hires with a copy of the employee handbook also would satisfy the requirement to provide new hires with the prevention plan. Need an employee handbook? PIA’s HR Info Central has you covered.

Exposure controls

The DOL has mandated that employers include certain exposure controls in their prevention plan including:

  • Health screening
    • Employee health screenings should be performed at the beginning of each workday.
  • Face coverings
    • Required when physical distancing cannot be maintained.
    • Must be provided to employers at no cost to employees.
  • Physical distancing
    • Employees should be at least six feet apart.
  • Hand hygiene facilities
    • Handwashing facilities must be provided to an extent that is practicable and feasible.
    • Hand sanitizer must be provided when handwashing facilities are not available.
  • Cleaning and disinfection
    • Surfaces believed to be contaminated must be cleaned and disinfected immediately.
    • Frequently touched surfaces should be disinfected throughout the workday
    • Communal tools, equipment and workspaces should be cleaned before they are shared.
    • Common areas, such as bathrooms, break rooms, and vehicles should be cleaned and disinfected at least daily.

Anti-retaliation

In addition to the safety standards, the Prevention Standard also contains significant anti-retaliation provisions. Employers are prohibited from discriminating or taking an adverse action against employees for:

  • exercising their rights regarding the airborne infectious disease exposure prevention plan;
  • reporting violations, concerns, or seeking assistance or invention; or
  • refusing to work where there is a good-faith belief that doing so could expose the employee to an airborne infectious disease.

Model Airborne Infectious Disease Exposure Prevention Plan

The DOL’s model Airborne Infectious Disease Exposure Prevention Plan puts the Prevention Standards into action. Employers should review the model template—and the industry-specific templates—to determine the best fit for them. However, PIANY advises members to use the general model. The model plan details the minimum controls the employer will need to deploy in the event of an outbreak, any advance controls that might be necessary, cleaning and disinfection practices, infection response, training, and retaliation protections.

Workplace safety committee

While all employers must adopt an airborne infectious disease prevention plan, not all have to allow workplace safety committees. Under the law, employers with 10 or more employees have to allow workplace safety committees. To be clear, forming a workplace safety committee is not required.

However, if a committee is formed, at least two-thirds of the members of the committee must be nonsupervisory employees. And, the law states specifically that employee members of the committee should be selected by, and from among, nonsupervisory employees. And, leadership in the committee is required to be split between co-chairs: one who represents the employer and one who represents the employees.

A workplace safety committee is permitted to meet at least once a quarter but for no longer than two hours. Additionally, employers must permit safety committee designees to attend training that cannot exceed four hours. 

Committee responsibilities

Under the law, a workplace safety committee has the authority to perform certain functions including:

  • raising health and safety concerns to the employer, to which the employer must respond;
  • reviewing and providing feedback any policy put in place in the workplace that the NY HERO Act requires;
  • reviewing the adoption of any policy in the workplace in response to any health or safety law, or other related directive;
  • participating in any site visit by any governmental entity responsible for enforcing safety and health standards; and
  • reviewing any report that the employer files related to the health and safety of the workplace.

Retaliation

It should be no surprise that this law contains a retaliation provision. Under the law, any employers are prohibited from taking an adverse employment action against any employee who participates in, including establishment of, a workplace safety committee.

Committee deadline

Employers must give their organization the option to form a workplace safety committee starting Monday, Nov. 1, 2021.

About the author…

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.

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