New York recently passed the New York Health and Essential Rights Act (“NY HERO Act”), which requires private employers to develop and implement a health and safety plan targeting the spread of future airborne infectious diseases.
The Prevention Plan
Under the NY HERO Act, employers must either (i) adopt the New York State Department of Labor’s (“NYDOL”) model prevention plan or (ii) develop and establish an alternative prevention plan that equals or exceeds the requirements in the NYDOL’s model plan. In addition to the model plan, the NYDOL created several industry-specific prevention plans for the following industries: agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail, which can be found here.
The model plan sets forth the minimum requirements employers must provide to prevent exposure to airborne infectious diseases in the workplace and establishes requirements for:
- employee health screenings;
- employee face coverings;
- personal protective equipment;
- workplace hand hygiene stations and protocols, which includes adequate break times for employees to wash their hands;
- cleaning and disinfecting shared equipment and frequently touched surfaces and high-risk areas;
- social distancing;
- complying with mandatory or precautionary orders of isolation or quarantine issued to employees;
- air flow, exhaust ventilation, or other special design requirements;
- designation of one or more supervisors with the responsibility to ensure compliance with the prevention plan and any applicable federal, state, or local laws, rules, or guidance on preventing the spread of an airborne infectious disease;
- notice to employees; and
- verbal review of the infectious disease standard, employer policies, and employee rights under the NY HERO Act.
Employers have until September 4, 2021 to distribute the prevention plan to employees. The prevention plan must also be posted in a visible and prominent place within the worksite, included in the employee handbook, and provided to new employees upon hire.
Notably, although employers are required to adopt and distribute a prevention plan, the plan only goes into effect “when an airborne infectious disease is designated by the New York State Commissioner of Health [(“Commissioner”)] as a highly contagious communicable disease that presents a serious risk of harm to the public health.” As of the date of this alert, the Commissioner has made no such designation, and thus, prevention plans are not required to be in effect.
Anti-Discrimination/Retaliation
Employers are prohibited from discriminating or retaliating against any employee for exercising rights granted by the NY HERO Act. Employers cannot take any adverse employment action against any employee for reporting violations of the law or prevention plan; reporting concerns about exposure to airborne infectious diseases; or refusing to work under limited circumstances where the employee reasonably believes in good faith that such work exposes the employee or others to an unreasonable risk of exposure to an airborne infectious disease due to working conditions that are inconsistent with the NY HERO Act.
Penalties and Cure Period
Employers who fail to adopt a prevention plan may be assessed a civil penalty of not less than $50 per day. If employers fail to abide by their written prevention plan, the Commissioner may also assess a penalty against employers of not less than $1,000 or more than $10,000. Penalties are increased if an employer violates the NY HERO Act more than once in the preceding six years.
The NY HERO Act requires employees to give the employer notice of a violation before bringing a civil action, and employers have 30 days to cure any alleged violation. An employee is barred from bringing a civil action if the employer remedies the alleged deficiency. An employee must bring the civil action within six months of the employee’s knowledge of the alleged violation.
Workplace Safety Committees
In addition to the above requirements, effective on November 1, 2021, employees have the right to form joint labor-management workplace safety committees if the employer has ten or more employees. The committee shall be composed of employee and employer designees, provided at least two-thirds are non-supervisory employees. The committee must be permitted to raise workplace health and safety concerns, review employer policies related to occupational safety and health, and participate in site visits by a government entity. The committee is entitled to meet on a quarterly basis during work hours for up to two hours. Finally, employers must permit the designees to attend a training of no more than four hours, without suffering a loss of pay, regarding worker safety committees and occupational safety and health.
Employer Takeaway
New York private employers should promptly develop and distribute a prevention plan and remain up to date on airborne infectious disease outbreak designations. If you have any questions regarding this Alert, please contact the authors, Bran Noonan, bnoonan@fordharrison.com, Partner, and Timothy Barbetta, tbarbetta@fordharrison.com, Senior Associate, in our New York City office. Of course, you can also contact the FordHarrison attorney with whom you usually work.