Jill Turner Lever, Amy H. Sachs
Employment and Labor
July 13, 2021
On May 5, 2021, Governor Cuomo signed the New York Health
and Essential Rights Act (“NY HERO Act”) into law, which mandates extensive workplace health and safety
protections against exposure and disease during a future airborne infectious
disease (“AID”) outbreak. The State enacted amendments on June 7, 2021, which
included amendments directing the New York State Department of Labor (“NY DOL”)
to publish industry specific guidance by July 5, 2021 and to require employers
to adopt or create an Airborne Infectious Disease Exposure Prevention Plan
within 30 days of such publication. In addition, employers with at least 10
employees are required to permit the establishment of safety committees to
address safety workplace concerns effective November 1, 2021.
As expected, on July 6th, the NY DOL published
the Airborne Infectious Disease Exposure Prevention Standard (the “Exposure
Prevention Standard”) and the Model Airborne Infectious Disease Exposure
Prevention Plan (the “Model Plan”). In addition, the NY DOL published certain
industry specific templates for agriculture, construction, delivery services,
domestic workers, emergency response, food service, manufacturing and industry,
personal services, private education, private transportation and retail
Accordingly, by August 4th, all New York
employers with worksites (of any size) located in New York must either adopt
the applicable Model Plan provided by the NY DOL, or establish an alternative
plan that meets or exceeds the minimum requirements set forth in the published
Exposure Prevention Standard. If an employer develops its own plan or a
different exposure plan, it must do so in accordance with a collective
bargaining agreement, or if there is no collective bargaining representative, with
the “meaningful participation” of employees.
Every plan must include appropriate exposure controls for
activities performed at the worksite, including implementing health screenings
prior to the beginning of the work day, requiring face coverings (to be
provided to the employees at no cost), implementing physical distancing,
cleaning and disinfecting worksites, providing hand hygiene facilities and
personal protective equipment, if applicable. Plans should also be updated in response to guidance from the New York
State Department of Health and the Centers for Disease Control.
Each employer must provide the written Airborne Infectious Disease Exposure Prevention
English or in the primary language of its employees within 30 days after the adoption of the plan (no later than September 3rd),
or within 15 days after a period of closure due to an AID. In addition, employers should
post the plan in a visible and prominent location within the worksite.
Employers that provide employee handbooks should include the Airborne Infectious
Disease Exposure Prevention Plan in
its handbook, and distribute the plan to newly hired employees, upon hiring.
The plan should otherwise be available, upon request, to all employees,
employee representatives, collective bargaining representatives, independent
contractors, the Department of Labor and the Department of Health.
The Airborne Infectious Disease Exposure Prevention Plans
must go “into effect” when an AID is designated by the New York State Commissioner
of Health as a highly contagious communicable disease that presents a serious
risk of harm to the public health. As
noted above, currently there is no AID designation and plans are not required
to be in effect.
When an AID is designated by the Commissioner of Health,
each employer shall immediately review and update its prevention plan, activate
the plan and provide each employee with a written copy of the plan in English
or in the primary language of its employees, and post a copy of the plan in a
visible and prominent location at the worksite. Once an AID is designated,
employers also must conduct a “verbal review” of employer policies and employee
rights under the NY HERO Act, including the employer’s exposure prevention plan set forth herein.
It is important to note that the Exposure Prevention
Standard prohibits discrimination, retaliation or adverse action taken against
any employee exercising their rights under the NY HERO Act, for reporting violations of the plan, reporting any exposure concern,
or refusing to work where the employee reasonably believes in good faith that
the work creates an unreasonable risk of exposure to the infectious disease.
Additionally, employers with at least 10 employees are required to permit employees to establish and administer a joint
labor-management workplace safety committee effective November 1, 2021.These workplace safety committees,
which are to be compromised of two-thirds non-supervisory employees will be
authorized to perform tasks including but not limited to, raising health and
safety concerns, reviewing exposure prevention plan policies, and participating
in site visits by any governmental entity responsible for enforcing safety and
health standards. Employers that already
have workplace safety committees consistent with the above requirements will be
Failure to comply with the NY HERO Act may result in civil penalties of $50
per day for failing to adopt an appropriate plan and a fine of $1,000-10,000
for failing to comply with an adopted plan. Employees may also bring a civil action seeking injunctive relief
against employers alleged to have violated an adopted prevention plan; however,
advance notice to the employer of the alleged violation is required. The Court
may among other things, enjoin the employers conduct or order the payment of
liquidated damages of no greater than $20,000.
All New York employers are required to take affirmative
steps to adopt, distribute and post a
compliant plan by August 4, 2021 and then to take additional detailed steps if
an AID is designated. While the NY HERO Act is forward looking in the event of another
communicable disease outbreak, the terms of the plan cover the same types of
preventative measures that were required by New York State during the COVID-19
pandemic and should be familiar to employers. We are available to assist on any aspect of the NY HERO Act, as well as on the evolving circumstances of the
This Client Alert has been prepared by Sills Cummis & Gross P.C. for informational purposes only and does not constitute advertising or solicitation and should not be used or taken as legal advice. Those seeking legal advice should contact a member of the Firm or legal counsel licensed in their state. Transmission of this information is not intended to create, and receipt does not constitute, an attorney-client relationship. Confidential information should not be sent to Sills Cummis & Gross without first communicating directly with a member of the Firm about establishing an attorney-client relationship.