New York, N.Y. (May 13, 2021) -  After a year's worth of various executive orders addressing worker safety issues arising from the COVID-19 pandemic, as of May 6, 2021, New York has adopted novel legislation designed to protect employees. This new law provides workers with a voice when faced with safety concerns surrounding airborne infectious diseases. The stated goal of the New York Health and Essential Rights Act, or NY HERO Act, is to provide support for workers and give them the tools to keep themselves and their families safe. As explained below, the Act goes beyond existing executive orders and imposes requirements for dealing with all airborne diseases, not solely COVID-19.

State-Mandated Airborne Disease Prevention Standards and Plans

The Act's first requirement, effective on June 4, 2021, requires the New York State Department of Labor (DOL) to create industry-specific model airborne disease exposure prevention standards. The standards must set requirements for, among other things, employee health screenings, personal protective equipment, social distancing, face coverings, break times for handwashing, disinfecting shared equipment and frequently touched surfaces, compliance with isolation and quarantine orders, and designation of supervisory employees to enforce compliance with infectious disease prevention plans. It remains to be seen how quickly the DOL will be able to issue the required detailed model standards. Employers may want to consider their particular industry to identify unique circumstances and formulate appropriate standards even before the DOL has spoken.

Once the DOL has issued the standards, all private employers will be required to establish airborne infectious disease exposure plans by November 1, 2021. That can be done by adopting the DOL's model standards or via customized plans. Once formulated, the plan must be disseminated to all employees in writing or included in any employee handbook and it must also be posted in the workplace. Employers will need to translate any customized plans into each employee's primary languages, to the extent the DOL provides a model plan in that language.

Workplace Safety Committees

A major innovation is that employers with at least 10 employees must permit the creation of joint management-labor workplace safety committees. This is a notable intrusion into the management-labor relationship for non-union workplaces. Committee members are to be allowed to raise health and safety issues (and the employer must respond when the members do so), review employer health and safety plans and policies, participate in government site visits for the purpose of health and safety enforcement, review employer reports regarding workplace health and safety, attend training on safety, and schedule quarterly meetings during work hours. Employers with unionized workforces will need to deal with the collective bargaining agreement (CBA) representative as to such committee issues (although a CBA can explicitly waive the Act's requirements). Notably, the committee membership must be at least two-thirds non-supervisory employees.

Potential Liability, Including for Retaliation

Unsurprisingly, the HERO Act requires that the employer's standards prohibit retaliation against employees who report exposure concerns or violations of the Act or who become members of workplace safety committees, as well as against those who refuse to work and notify an employer of inconsistent working conditions and the employer fails to cure the conditions. An employee can show that their refusal to work was in good faith by demonstrating a belief that there is “an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with laws, rules, policies, orders of any government entity.”

Employers should note the potential for liability based on failure to adopt the appropriate health and safety measures. The HERO Act creates a private right of action for employees to obtain injunctive relief, attorneys' fees, and liquidated damages of up to $20,000 unless the employer “proves a good faith basis to believe that the established health and safety measures were in compliance with the applicable airborne infectious disease standard.” Civil penalties of at least $50 per day are available for employers that fail to meet the deadlines to adopt plans. More onerously, employers found to have failed to comply with their plans can be subjected to penalties of $1,000 to $10,000. A determination that the employer retaliated against an employee for protected activity under the Act by termination can include reinstatement and an award of back pay. One favorable provision for employers permits a court to award sanctions if the employee lawsuit is found to be completely without merit and to have been filed primarily to harass or maliciously injure another.

Next Steps

It remains to be determined whether any legal challenges to the Act will be mounted and whether they are likely to succeed, and also whether any viable arguments will exist that any provisions of the Act can be deemed preempted by the OSHA Act or standards adopted by the United States Department of Labor under OSHA.

Additionally, amendment of the Act in the near future seems likely. Governor Cuomo has reached agreement with the legislature to include more specific instructions and timelines for the DOL and employers to enact the required standards, provide employers with an opportunity to immediately cure violations to avoid liability, and limit litigation to cases of bad faith employer conduct. It remains to be seen what the timeline will be for the amendments.

Given that the contemplated amendments will not alter the eventual obligations being imposed on employers, in the coming months employers would be well advised to start planning, budgeting, and drafting written plans, preparing to respond to employee requests to form committees, and determining what training will be needed to comply with the Act. Lewis Brisbois' New York employment team is available to assist with all such compliance issues.

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