Don’t wait: New York employers must act now to meet state-level infectious disease preparedness requirements. By August 5, 2021, employers with workplaces in New York City must adopt a template infectious disease exposure plan or develop an alternative plan that meets or exceeds the minimum standards of the New York HERO Act.

On May 5, 2021, Governor Andrew Cuomo enacted the New York Health and Essential Rights Act (NY HERO Act). Adopted in response to the COVID-19 pandemic, the HERO Act aims to protect employees from exposure and disease during future outbreaks of airborne infectious diseases. The law added two sections to the New York labor law: § 218-b, regarding airborne infectious disease prevention plans, and § 27-D, governing workplace safety committees. The law applies to all state employers, regardless of size, except state and government employers. “Employees” are broadly defined to include independent contractors, part-time workers and others.

As part of the law, the New York State Department of Labor (NYDOL), in consultation with the New York State Department of Health (NYDOH), issued a standard for the prevention of exposure to airborne infectious diseases (the standard) and an industry-specific model of airborne infectious diseases. Disease exposure prevention plans (model plans). Covered employers are required by August 5, 2021, either adopt the applicable model plan or establish an alternative plan that meets or exceeds the minimum requirements of the standard. Employers should distribute the plan to employees and incorporate it into employee manuals; however, employers are not required at this time to activate the procedures set out in their plans.

The standard

The standard establishes minimum health and safety requirements, as well as other employer obligations relating to exposure prevention plans:

Employee participation / distribution: Employers who adopt a plan other than the model plan must do so with “meaningful employee participation… and this plan must be tailored and specific to the risks in the industry and specific employer workplaces”. Therefore, employers should seek employee feedback on their plan before adoption. Employers are required to distribute the plan to employees within 30 days of establishing such a plan, within 15 days of reopening after a business closure due to an airborne infectious disease, to all news recruits and, upon request, to any employee, NYDOL or NYDOH.

Exposure controls: The standard also requires employers to select appropriate exposure controls based on the hazards in their particular workplace. These checks include health screenings, face coverings, physical distancing, hand hygiene facilities, cleaning and disinfection, and personal protective equipment.

Anti-retaliation measures: In addition, the standard contains anti-retaliation and anti-discrimination provisions. Employers cannot retaliate against employees who: (i) exercise their rights under the law, (ii) report violations of the law to officials, (iii) report or seek help with a problem. exposure in the air to an employer or public servant, or (iv) refuse to work, where such employee has reasonable grounds to believe that such work exposes him or other workers or the public, at an unreasonable risk of exposure to an airborne infectious disease, provided the employer has been notified of these working conditions and has not cured them.

Package activation: Employers are only required to activate their plans after the New York State Health Commissioner has designated a highly contagious communicable disease as a serious risk to harm public health. In this case, employers must, among other requirements, activate exposure controls in their plans, post a copy of the exposure prevention plan in a conspicuous and conspicuous place on the job site, assign responsibilities for performing an employee supervision, monitoring and maintaining exposure controls, and conducting an oral review of the plan and employee rights under the Act.

Penalties: Employers are subject to civil penalties of at least $ 50 per day for failure to adopt a plan, and at least $ 1,000 or more than $ 10,000 for failure to comply with an activated plan. Repeated infractions may result in increased penalties.

Private cause of action: An employee can sue an injunction against an employer for violating their plan in a way that creates “a substantial probability that death or serious physical harm could result to the employee.” . . “. Before bringing an action, an employee must first provide the employer with notice of the alleged violation, after which the employer has 30 days to remedy the alleged violation, unless the employer has acted in bad faith and demonstrated that he was unwilling to remedy the situation. An employee must file a complaint within six months of the date the employee was notified of the alleged violation. A court can award costs and attorneys’ fees to the employer if it finds an employee’s claim to be frivolous.

Occupational safety committees

A second article of the HERO law, which entered into force on November 1, 2021, allows employees to form a joint management-union workplace safety committee. The committee should be made up of both employers and designated employees, with at least two-thirds of non-supervisory employees selected by non-supervisory employees. The Act authorizes committees to: (i) raise health and safety issues, to which employers must respond; (ii) review health and safety policies, including policies adopted in response to laws, decrees or directives; (iii) participate in visits to government workplaces; (iv) examine the reports filed by the employer concerning occupational health and safety; (v) meet quarterly during working hours for a maximum of two hours; and (vi) allow committee members to attend training, lasting up to four hours, on occupational health and safety and the operation of worker safety committees.

Employers face uncertainty as to what action, if any, to take at this time. The Act does not require employers to establish a committee; rather it obliges employers to To allowemployees to form such a committee: “[e]employers
must permit employees establish and administer a joint management-union workplace safety committee ”(emphasis added). Still, some employers may prefer to proactively form a workplace safety committee by November 1.

Next steps for employers

To comply with the HERO Act, employers must take the following steps quickly:

• Establish a plan to prevent exposure to airborne infectious diseases by August 5, 2021. At present, employers are not required to activate the procedures provided for in their prevention plans.
• Designate one or more persons responsible for the application of the plan.
• Solicit employee feedback to incorporate it into the plan.
• Incorporate the plan into the employee handbook.
• Distribute the plan to employees within 30 days of adoption, but no later than September 4, 2021.
• Obtain and properly store personal protective equipment and other exposure controls in preparation for an infectious disease outbreak.
• Designate a supervisory person (s) to perform a verbal review of the outbreak plan.
• Consider the creation of a joint management-union committee on safety by November 1, 2021.
• Note the additional steps employers must take if NYDOL requires plans to be in effect.

Model plans published by NYDOL may contain provisions that are not applicable to all workplaces. Employers are encouraged to speak with their labor lawyer Foley to best ensure compliance with the law.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.