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Employment Law Notebook

New York’s New HERO Act Imposes Mandatory Requirements on Employers to Prevent the Spread of Airborne Infectious Diseases and Creates New Rights for Employees

The New York Department of Labor (“NYDOL”) is poised to release mandatory health and safety standards on employers in New York state aimed at preventing exposure to airborne infectious diseases in the workplace. These regulations, which are expected to be released by June 4, are based on the state’s recently passed HERO Act (“Health and Essential Rights Act”).  They will consist of model, standard requirements and procedures to be used at the worksite regarding employee health screening, PPE that must be provided by and paid by the employer, social distancing measures, capacity limits, hand hygiene and breaks for hand hygiene, cleaning and disinfection of shared equipment and high-risk surfaces, compliance with mandatory and precautionary quarantine and isolation orders, and engineering controls.  They will be industry-specific, take into account the type of risks present at a worksite, and include different measures to be followed during a state of emergency and during other times.

Employers covered by this part of the HERO Act are any person or entity other than government entities that employ employees, independent contractors, domestic workers and others in New York.  Employers will be required to implement the Department of Labor’s model standard or an alternative airborne infections disease program at all worksites that equals or exceeds the minimum requirements in the NYDOL’s model standard.  Worksites does not include the residence of any employee unless the employer provided the residence and it is used as the primary place of work.

The new model plan is designed to prevent the spread of airborne Infectious diseases, which are defined as “any infectious viral, bacterial or fungal disease” transmitted in the air by aerosol particles or droplets and designated by the state Department of Health as a “highly contagious communicable disease” creating a serious risk of harm to public health.

The HERO Act also creates new rights for employees who raise concerns or complaints about their employer’s failure to put in place the necessary airborne infectious disease protocols, which are in effect as of June 4.  Employers are prohibited from threatening, discriminating or retaliating against, or taking adverse actions against employees for:

1. Reporting violations to any government officials;

2. Reporting airborne infectious disease exposure or a concern about such exposure to the employer or a government official; and

3. Refusing to work where the employee “reasonably believes, in good faith that such work exposes him or her, or other workers or the public, to an unreasonable risk of exposure to airborne infectious disease due to working conditions” and

a. The employee or another employee or representative of the employee “notified the employer of the inconsistent working conditions and the employer failure to cure the conditions” or

b. the employer “had or should have had reason to know about the inconsistent working conditions” and nonetheless maintained them.

The Act allows employees to bring a civil lawsuit against their employer for such conduct and seek these remedies: liquidated damages up to $20,000, attorneys’ fees and costs, and injunctive relief.   Employers will be able to avoid liquidated damages if they can show they had a good faith believe that their health and safety measures complied with the Act’s requirements. They will also be permitted to seek sanctions against employees and their counsel for frivolous lawsuits. 

Employers who fail to adopt the required health and safety protocols will be fined up to $50 per day by the NYDOL. Those who fail to abide by their adopted plan will be fined between $1,000 and $10,000. The NYDOL and Attorney General may also seek injunctive relief in connection with violations of the Act.

It is unclear how much time employers will have to implement these new airborne infectious disease standards.  The HERO Act’s requires employers to implement the plan and distribute it to employees on June 4, but that is also the deadline for NYDOL to issue the model plan.   Accordingly, the NYDOL is expected to address this deadline when it issues the model plan. In the interim, employers should consult with counsel regarding procedures already in place or planned regarding preventing exposure airborne infectious diseases at their worksites and before taking any action against an employee who makes a complaint or raises a concern about these procedures or the lack of such procedures.

The Act also imposes an additional requirement on employers of 10 or more employees. By November 1, 2021, such employers must permit employees to participate in a joint labor management workplace safety committee that will be authorized to: raise health and safety concerns, complaints and violations (to which the employer must respond); review and provide feedback on the employer’s policy as required under the HERO Act; participate in related site visits by government agencies; and review reports filed by the employer regarding health and safety.