On May 5, 2021 New York’s Governor Cuomo signed into law the New York Health and Essential Rights Act (NY Hero Act) in response to the COVID-19 pandemic. This law mandated workplace health and safety protections against exposure and disease during any future airborne infectious disease outbreaks. The law initially required the NY Department of Labor (NY DOL) to publish industry specific model safety standards by June 4, 2021. Amendments to the initial law were signed into law on June 11, 2021 and the amendments extended the deadline for the NY DOL to publish the safety standards and model exposure prevention plans and it also set the deadline for employers to adopt the prevention plan for 30 days after the NY DOL’s publication of the model standards. Additionally, the amendments gave employers 60 days following the NY DOL’s publication of the model standard to provide the employer’s adopted safety plan to their employees.
On July 6, 2021 the NY DOL, in consultation with the New York State Department of Health (NY DOH), published the Airborne Infectious Disease Exposure Prevention Standard and a Model Airborne Infectious Disease Exposure Prevention Plan. The NY DOL also published eleven industry specific templates for agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail.
By August 5, 2021 employers must either adopt the model plan applicable to their industry or create their own airborne disease prevention plan that meets or exceeds the minimum requirements of the law. If an employer develops its own plan or a different exposure plan, it must do so in accordance with a collective bargaining agreement, or if there is no collective bargaining agreement, with the “meaningful participation” of employees.
Employers must, by September 4, 2021 or within 30 days after adopting their safety plan (whichever is sooner), provide their adopted safety plan to their employees as well as posting the model plan in a visible and prominent location within the workplace. Employers must distribute the plan to employees in the employee’s identified primary language, provided there is a translation offered by the NYS DOH. (Currently there are no translations offered but that is expected to change.) Employers must also, “within fifteen days after reopening after a period of closure due to airborne infectious disease”, provide the plan to their employees, and also, upon hire, new hires must also receive a copy of the plan, and if an employer provides a handbook to their employees, the plan must be included in the handbook. The plan should also be available, upon request, to all employees, employee representatives, collective bargaining representatives, independent contractors, the NY DOL and the NY DOH.
While the plan must be adopted no later than August 5, 2021 the plan will only be activated “when an airborne infectious disease is designated by the New York State Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health”. While the COVID-19 pandemic is ongoing, the NY DOL stated that as of the date of the publication of the model plan, an airborne infectious disease designation has not been made, meaning that while employers must adopt the plan it is not required to be put in effect until that designation is made.
The NY Airborne Infectious Disease Exposure Prevention Standard applies to all private employers with worksites in NYS, with an exception carved out for any employees covered by a temporary or permanent standard adopted by OSHA (such as health care workers protected under the Emergency Temporary Standard). The NY Standard only applies to an airborne infectious agent or disease that is designated by the NYS Commissioner of Health as highly contagious, communicable, and a serious risk of harm to the public health, and requires all employers to establish, obtain, and maintain the following: Exposure Prevention Plan, Exposure Controls, and Prohibition on Retaliation.
Exposure Prevention Plan – also known as the safety plan, is the written plan that must be adopted by every NYS employer and it must be reviewed verbally with employees. If a company decides to adopt the Model Plan, the employer must identify the following: (1) the supervisory employees responsible for the enforcement of the plan; (2) the worksites the plan applies to, (3) the engineering and administrative controls utilized and their location, (4) any PPE required, and (5) the individual responsible for training and verbally informing employees of the existence and location of the plan. Additionally, the Model Plan includes a section that requires employers to review and revise the plan periodically, upon activation, and “as often as needed” to keep up with changing requirements. Employers must document when the plan is reviewed and revised, the date, the participants, the revisions, and the individuals who approved the revisions.
Exposure Controls – any worksite where occupational exposure exists must provide appropriate exposure controls. Exposure controls can include hand washing, physical distancing, face coverings, stay-at-home policies, and employee health screenings for symptoms.
Prohibition on Retaliation – prohibits employers from discriminating, retaliating or taking adverse action against any employee exercising their rights under the Act, for reporting violations of the plan, reporting any exposure concern, or the employee’s refusal to work due to good faith, reasonable beliefs that such work would expose employees to “an unreasonable risk of exposure to airborne infectious disease due to the existence of working conditions that are inconsistent” with the minimum standards.
Section 2 of the Act, which takes effect on November 1, 2021, requires all private employers with at least 10 employees to allow employees to establish a joint employer-employee health and safety committee authorized to raise workplace health and safety issues and evaluate applicable policies. Amendments to the Act clarified that the reviewable policies were limited to issues of occupational health and safety. Nonsupervisory employees must comprise at least two-thirds of the committee and the committee must be co-chaired by both an employer representative and a non-supervisory employee. If a company already has a similar workplace safety committee and that committee is already consistent with the requirements of the Act, there is no need to create a new committee. Committee meetings during work hours are limited to two hours in duration, and committee trainings are limited to a maximum of four hours. The NY DOL is expected to release guidance regarding the implementation of these committees in the upcoming months.
Failure to comply with the NY Hero Act may result in civil penalties of $50 per day for failing to adopt an appropriate plan and a fine of $1,000-$10,000 for failing to abide by its own adopted plan. Employees may also bring civil action against employers alleged to have violated an adopted plan, however advanced notice to the employer of the alleged violation is required. Multiple violations within a six-year period will result in a substantial increase in fines.
Your safety plan should already be in place. Contact PMP if you have any questions regarding the NY Hero Act.
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