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NY Health and Essential Rights Act (NY HERO Act)

On May 5, 2021 Governor Cuomo signed the New York Health and Essential Rights Act (NY HERO Act), which is designed to protect against the spread of COVID-19 and other airborne infectious diseases in the workplace, creating serious compliance challenges for employers.

The Act consists of two parts:

1. Requires employers to implement an airborne infectious disease exposure prevention plan, and;

2. Requires employers to allow the formation of a joint labor-management workplace safety committee.

Under the part one of the Act, the New York State Commissioner of Labor is required, by June 4, 2021, to create and publish a model airborne infectious disease prevention plan and establish minimum standards for preventing exposure to airborne infectious diseases in areas including: employee health screenings, face coverings, personal protective equipment, accessible workplace hand hygiene stations and breaktimes to use handwashing facilities (as needed), regular cleaning and disinfecting of shared equipment, social distancing, and mandatory and precautionary isolation or quarantine order.

The model prevention plans will be industry-specific and applies to employers of all sizes. Employers will be required to adopt the model prevention plan provided or create their own plan that equals or exceeds the minimum standards of the model plan.

Employers will be required to provide the prevention plan to all employees on June 4, to new employees upon hire, and to all employees if there is a workplace closure due to an outbreak. The prevention plan must be posted in a “visible and prominent location” in the workplace and be included in the employee handbook (if one exists). The prevention plan must also be provided to employees in English and their primary language (if not English).

Employers can be fined $50 per day for failure to adopt a prevention plan. The fine for failure to abide by the prevention plan is $1,000 to $10,000. Employers who have additional violations of the HERO Act (more than one in a six-year period) can be issued larger fines.

Part Two of the Act, effective November 1, 2021, states that employers with at least 10 employees, must permit their employees to create joint labor-management workplace safety committees, consisting of at least two-thirds of non-supervisory employees. The committee must be allowed to raise workplace health and safety concerns, review employer workplace safety policies, review the adoption of any policy in response to any health and safety law, participate in any site visit by government health and safety officials, review any report filed by the employer related to health and safety, and attend meetings during work hours, at least once a quarter. Employers cannot retaliate against an employee who participates in the safety committee.

Employers should begin assessing how they will comply with the obligations that are already stated in the Act that will go into effect on June 4 and November 1 while waiting for the model prevention plan to be released.

**In mid-May the New York State Assembly and Senate both introduced legislation that would amend certain provisions of the NY Hero Act. PMP will keep you updated as more information on these proposed changes to the NY HERO Act evolve.


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