New York Governor Andrew Cuomo has signed the New York Health and Essential Rights Act, or "the NY HERO Act" (the Act), into law. The Act adds workplace health and safety protections for airborne infectious diseases.
The Standard:
The Act requires employers to follow safety standards for airborne infectious diseases (the Standard) and requires employers to implement an exposure prevention plan.
Model program:
By June 4, 2021, employers are required to create a health and safety program. The state will publish a model program, in English and Spanish, for employers to follow. Employers must implement the plan relevant to their industry or an alternate that meets or exceeds the minimum standards of the model program.
The model will include best practices related to:
- Cleaning and disinfecting of shared equipment and common use surfaces.
- Face coverings.
- Health screenings.
- Personal protective equipment.
- Hand hygiene.
- Social distancing protocols.
- Mandatory or precautionary isolation or quarantine orders.
- Engineering controls.
- Enforcement responsibility to one or more supervisory employees.
- Employee notice requirements.
- Verbal review of standards, policies, and employee rights.
Covered workers:
The Standard covers all employees, including part-time workers, domestic workers, home care workers, other temporary and seasonal workers. It also covers independent contractors and individuals who work for staffing agencies or who deliver goods or transport people at, to, or from the worksite on behalf of the employer.
Notice and Posting Requirements:
Employers must provide the exposure prevention plan to employees in writing, in English, and in the language identified by each employee as their primary language (provided there is a model policy developed in that specific language) by June 4, 2021. The notice must also be provided to employees at the time of hire and when reopening after a period of closure due to airborne infectious disease and must be made available upon request.
The plan must also be posted in a conspicuous area of the workplace and included in the employee handbook if the employer provides their employees with an employee handbook.
Workplace Health and Safety Committees:
Beginning Nov. 1, 2021, employers who employ at least 10 employees, must allow employees to establish a joint employer-employee workplace health and safety committee authorized to raise health and safety concerns and evaluate the worksite's health and safety policies. The committees must comprise at least two-thirds of non-supervisory employees, and non-supervisory employees must select the non-supervisory employees on the committees.
Employers are also required to allow these safety committee designees to attend training, without loss of pay, on the function of worker safety committees, their rights under the Act, and an introduction to occupational safety and health.
Authorized tasks:
Committee members are authorized to perform the following tasks, including but not limited to:
- Raise health and safety concerns, hazards, complaints, and violations to their employer, that the employer must respond to.
- Review any policy put in place at the worksite under the HERO Act and any provision of the workers' compensation law and provide feedback.
- Review any policy their employer adopts in the workplace that is in response to a health or safety law, ordinance, rule, regulation, executive order, or another related directive.
- Participate in any site visit by any governmental entity responsible for enforcing safety and health standards.
- Review any report filed by the employer that relates to the health and safety of the workplace as required by law.
- Regularly schedule meetings during work hours at least once a quarter.
Employee protections:
Employers are expressly prohibited from retaliating and discriminating against or threatening employees who exercise their rights under the Act. Employees are also protected if they:
- Participate in workplace safety committees.
- Refuse to work if, in good faith, they believe there's an unreasonable risk of exposure based on working conditions that are inconsistent with the HERO Act or other laws, rules, policies, or relevant government orders and they have notified their employer, and their employer failed to correct the conditions, or the employer had or should have had reason to know about the inconsistencies.
- Report violations or concerns to a state, local, or federal government entity, public officer, or elected official.
Future Amendments possible:
Recently proposed amendments to the Act include for example, extending the deadline for the NY Department of Labor to create industry-specific model safety protocols to July 5, 2021. The amendments also clarify that employers will not need to create a disease prevention plan until 30 days after the DOL creates its model industry-specific protocols. In addition, employers would have 60 days following the DOL publication to provide such safety protocols to their employees. We will continue to monitor these proposed amendments and will alert you if the amendments are enacted.
Compliance recommendations:
New York employers should review Senate Bill S1034B as well as their policies, practices, and training to ensure compliance. Please contact your dedicated service professional with any questions.