On May 5, 2021, the New York Health and Essential Rights Act, or NY “HERO Act,” was signed into law. While the Act was drafted in response to the COVID-19 pandemic, its provisions contemplate longer-lasting and broader actions to protect workers not only from COVID-19, but also from other airborne infectious diseases in the workplace. A brief overview of relevant provisions follows.

• Section 1 of the Act, effective June 4, 2021, requires the state Department of Labor (“DOL”) to create an airborne infectious disease safety standard and mandates that every employer in New York adopt the DOL’s model plan or implement a plan of their own that meets or exceeds such standard.
• Although the safety standard will differ among industries, at a minimum, it must include procedures and methods for the following:
  • Employee health screenings;
  • Face coverings;
  • Required personal protective equipment (“PPE”) that must be provided and maintained in a sanitary and reliable condition at the employer’s expense;
  • Accessible workplace hand hygiene stations and maintaining healthy hand hygiene (including providing adequate break times for employees to wash their hands);
  • Regular cleaning and disinfecting of shared equipment and frequently touched surfaces;
  • Effective social distancing for employee, consumers and customers (i.e., signage, increasing physical space between workers, limiting capacity of customers or consumers, flexible meeting and travel options, flexible worksite, or flexible work hours);
  • Compliance with mandatory or precautionary orders of isolation or quarantine that have been issued to employees;
  • Compliance with applicable engineering controls such as proper air flow, exhaust ventilation or other special design requirements;
  • Designation of one or more supervisory employees to enforce compliance with the plan and any other federal, state or local guidance related avoidance of spreading an airborne infectious disease as applicable to employees and third parties (i.e. customers, contractors and members of the public within the workplace);
  • Compliance with any applicable laws, rules, regulations, standards or guidance on notification to employees and relevant state and local agencies of potential exposure to airborne infectious disease at the worksite; and
  • Verbal review of the infectious disease standard, employer policies and employee rights.
• All employers must adopt the state model or implement their own written plan that meets or exceeds the minimum requirements.
• The plan must be provided to all current employees upon the Act’s effective date, must be given to new employees upon hire, and must be posted in a visible and prominent location within the worksite. The plan must also be reflected in the employee handbook.
• The Act prohibits discrimination or retaliation against employees for:
  • Exercising their rights under the Act;
  • Reporting violations of the Act or an employer’s plan to any state, local, or federal government entity, public officer or elected official;
  • Reporting airborne infectious disease exposure concerns to their employer or any state, local, or federal government entity;
  • And/or refusing to work if the employee reasonable believes, in good faith, that such work exposes the employee or other employees or the public to an unreasonable risk of exposure to an airborne infectious disease, provided the employee notified the employer of their concerns regarding the employer’s failure to comply with the Act and the employer failed to cure or otherwise address those concerns.
• Penalties for non-compliance can include a fine of $50 per day for failure to implement a compliant plan or between $1,000 and $10,000 for failure to abide by an adopted plan. These fines increase to $200 per day and between $1,000 and $20,000 per day if the employer had previously violated the Act in the preceding six years.
• The Act also provides a private right of action for employees who can bring claims for injunctive relief against employers for failure to comply with the relevant health and safety standards, or for retaliating against employees in violation of the Act.
• If an allegation against an employer is brought and the court finds it is “completely without merit,” the employer is entitled to seek sanctions against the attorney or the party who brought such action. The pending amendments to the Act would limit this private right of action to instances where the employers acted in bad faith and failed to cure deficiencies.
• Section 2 of the Act, effective November 1, 2021, requires employers of 10 or more employees to permit their staff to create a joint employer-employee workplace health and safety committee to assist in the review and enforcement of safety measures in the workplace.
• Each committee must include both employer and employee designees, at least two-thirds of the committee must be non-supervisory employees, and the committee must be co-chaired by a representative of the employer and non-supervisory employees.
• Committees are authorized to:
  • Raise health and safety concerns to the employer, to which the employer must respond;
  • Review any policy put in place in the workplace required by the HERO Act and provide feedback;
  • Review the adoption of any policy in the workplace in response to any health or safety law, ordinance, rule, regulation, executive order, or other related directive;
  • Participate in any site visit by any governmental entity responsible for enforcing health and safety standards;
  • Review any report filed by the employer; and
  • Regularly schedule a meeting during work hours at least once per quarter.
• Employers cannot retaliate against employees for participating in the activities or establishment of the committee.

Seward & Kissel will continue to monitor developments and additional guidance for employers ahead of the upcoming deadlines. In the meantime, however, New York businesses are already subject to state and federal COVID-19 safety measures which Seward & Kissel covered in prior client alerts and a webinar. See Office Reopening Guidelines for the Tri-State Region During the COVID-19 Pandemic; New COVID-19 Guidance from the EEOC, OSHA and CDC; and Seward & Kissel attorneys featured in a Hedge Fund Law Report article titled, “Critical Employment Law Considerations for Office Reopenings.”

Employers should contact counsel for assistance in complying with existing local, state, and federal reopening guidance and the upcoming HERO Act obligations.

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Seward & Kissel has established a COVID-19 Resource Center on our website to access all relevant alerts that we distribute.

If you have any questions regarding the NY HERO Act or any other COVID-19 reopening guidance, please contact Anne C. Patin at (212) 574-1516, Julia C. Spivack at (212) 574-1373 or your relationship partner at the Firm.