On May 5, 2021, New York Governor Andrew Cuomo enacted New York’s Essential Health and Rights Act (the NY HERO Act), an expansive new law requiring employers to implement enhanced protections by health and safety in the workplace in response to the coronavirus. pandemic (COVID-19) by June 4, 2021. The NY HERO Act closely follows Governor Cuomo’s recent announcement that, as of May 15, 2021, the office occupancy capacity limit in all of New York will increase by 50 to 75 percent. As New York employers reopen their businesses, they are encouraged to begin reviewing – and, where appropriate, developing – occupational health and safety policies and take other appropriate actions to comply with the new law and prioritize the well-being of employees.
While Governor Cuomo has promised amendments to the law to ease the burden of compliance, employers will nonetheless face substantial obligations under the new law, with a short trail to implement the minimum requirements that no. have not yet been announced. Accordingly, employers are urged to consider what steps they can take now to prepare while following developments related to the new law.
NY HERO Act. Designed as an amendment to the New York labor law, the NY HERO Act generally applies to all private employers in New York State, regardless of their size, and contains several key elements:
- Airborne infectious disease exposure prevention plans
The backbone of the NY HERO Act is a new requirement for New York employers to create an “Airborne Infectious Disease Exposure Prevention Plan” containing health and safety standards to protect their employees from occupational exposure airborne infectious diseases.
The law first orders the New York Department of Labor (NYDOL) to publish a “model standard” announcing minimum requirements for preventing exposure to airborne infectious diseases in the workplace. The minimum requirements should distinguish between industries and address certain topics, including employee health exams, face covers, workplace hygiene posts and social distancing. NYDOL must publish its model standard and minimum requirements by June 4, 2021.
Employers should then establish their own plan to prevent exposure to airborne infectious diseases by adopting the NYDOL model standard for their industry or developing their own âalternativeâ prevention plan – provided it meets or exceeds the requirements. minimum of the model standard published by NYDOL. Any alternative prevention plan should be tailored to the specific industry and workplace of the employer and be developed in consultation with employees. Employers must also post their prevention plan in a âconspicuous and conspicuous placeâ in the workplace and provide a written copy to employees when they are hired and when they reopen following a job-related shutdown. an infectious airborne disease.
- Protecting Employees Against Discrimination and Retaliation
Effective June 4, 2021, employers are prohibited by law from discriminating against or retaliating against employees for reporting violations of the law or their employer’s prevention plan, reporting concerns about potential exposure to infectious diseases airborne or refusing to work on the basis of a reasonable good faith belief that the working conditions present an unreasonable risk of exposure to an airborne infectious disease.
- Penalties and legal actions
Employers who fail to comply with the NY HERO Act can face potentially significant financial penalties. The law allows NYDOL to impose a fine of at least $ 50 per day on employers who do not adopt a prevention plan and a fine of $ 1,000 to $ 10,000 on employers who do not “stick” to a prevention plan. prevention once adopted.
The NY HERO Act also gives employees a private right of action against employers. Employers found guilty of breaking the law may be subject to an injunction, payment of plaintiff’s costs and attorney’s fees, and damages up to $ 20,000.
Like the anti-discrimination and anti-retaliation protections in the law, these provisions come into force on June 4, 2021.
- Occupational safety committees
The NY HERO Act further requires some New York employers to allow their employees to create joint employer-employee âworkplace safety committeesâ. Committees should be composed primarily of “non-supervisory employees” and be allowed to, among other things, raise health and safety concerns with the employer, review certain workplace policies (such as workplace policies required by applicable âhealth or safety lawâ), participate in government entity site visits and attend training on occupational health and safety standards. The law also requires “unsupervised employees” – not employers – to choose members of the employee committee and strictly prohibits employers from interfering with their selection process or taking revenge on employees for participating in the committee process. . In addition, when a collective agreement is already in place, the employee representative âis responsibleâ for the selection of members of the employee committee.
The provisions of the NY HERO Act regarding workplace safety committees come into effect on November 1, 2021 and, unlike other provisions of the law, only apply to private employers in New York with at least 10 employees.
As currently enacted, the NY HERO Act can be interpreted as imposing a handful of potentially substantial new compliance burdens on employers. However, relief may be on the way. By signing the NY HERO Act, Governor Cuomo simultaneously announced that he had reached an agreement with state lawmakers to amend the law to give employers more specific instructions on developing and implementing policies. workplace standards, allowing employers to ‘remedy’ violations and limit employees’ private right of action to ‘circumstances in which employers act in bad faith and fail to remedy deficiencies’ – changes that could ease some of the burdens imposed on employers by the new law. These amendments have not been enacted into law, however, and no bill to formally amend the NY HERO Act has yet been introduced by state lawmakers.
Increase in office capacity. The NY HERO Act is just one of many recent legal developments New York employers need to consider when preparing to safely reopen. Effective May 15, 2021, authorized office capacity for businesses in New York State will increase from 50% to 75% of maximum office occupancy. And, as of May 19, 2021, many New York businesses will no longer be limited by a fixed percentage of their maximum occupancy at all.
Governor Cuomo recently announced that New York will adopt new CDC guidelines on mask use and social distancing for fully vaccinated people. Businesses that bring customers together and operate above the state’s social gathering limit (for example, event venues, athletic competitions, performing arts and entertainment, food halls, and conventions) can eliminate the 6 feet of social distancing required and, therefore, increase capacity, only if all clients in the facility – or in a separate designated part of the facility – present proof of full immunization status (e.g. example, paper form, digital application or State Excelsior Pass).
On the other hand, offices and other businesses that do not assemble clients and operate below the state’s social gathering limit that choose to implement the new CDC guidelines have the option of requiring proof. complete immunization status or rely on self-declaration of immunization. status (ie the âhonor systemâ). For areas where the immunization status of individuals is unknown and for clients who do not present proof of full immunization status, the required 6-foot social distancing still applies until more New Yorkers are fully immunized. . This change will apply to all commercial settings (with the exception of exempt settings described by the CDC), including retail, food services, gyms and fitness centers, entertainment and family entertainment, barber shops, barber shops and other personal care services, among others.
Significantly, the CDC and New York State guidelines do not supersede any local requirements. Accordingly, employers are encouraged to continue reviewing local decrees, regulations and guidelines relating to COVID-19.
Given the rapid changes in office capacity, coupled with changes in CDC guidelines and potentially significant new requirements under the NY HERO Act, prudent New York employers will carefully review relevant policies and procedures, assess return to work. and similar workplace guidelines. , provide training to supervisory and management employees, and consider other appropriate measures as needed to reopen in a timely – and safe – manner while complying with the new law.