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Re-Opening Continues, But Not Without COVID Safety Legislation

By Katherine L. Wood, Esq.

Despite the recent lifting of mask mandates for vaccinated people across the state, New York has imposed a new COVID safety law, which employers should be aware of.  The new law, the New York Health and Essential Rights (“HERO”) Act, was passed in early May and goes into effect on June 4, 2021.  Essentially the HERO Act requires employers to put certain safety measures and prevention plans in place to prevent the spread of COVID.

Workplace Health & Safety Plans

Under the HERO Act, employers are required to adopt a health and safety plan relative to their industry.  The New York State Department of Labor (“NYSDOL”) will develop industry-specific model policies that impose health and safety prevention standards.  Employers have the option to adopt the NYSDOL model policy or to adopt a plan that meets or exceeds the required standards.  Once an employer adopts such a health and safety plan, the plan must be distributed to employees and placed in the employer’s employee handbook.      

The following areas must be addressed in workplace health and safety plans: employee health screenings, face coverings, required personal protective equipment, hand hygiene, regular cleaning and disinfecting, social distancing, compliance with mandatory or precautionary orders of isolation/quarantine, compliance with applicable engineering controls such as proper air flow, designation of one or more supervisory employees to enforce compliance, and verbal review of health and safety standards.

Joint Labor-Management Workplace Safety Committee

Employers with 10 or more employees must permit employees to create and administer a “joint labor-management workplace safety committee.”  This provision takes effect on November 1, 2021.

Employee and employer designees may serve on the committee, however, two-thirds of the committee members must be non-supervisory employees.  Employees who serve on the committee must be permitted to attend training associated with their role without a loss of pay.

The committee has authority, among other things, to: raise health and safety concerns, to which the employer must respond; review any employer policy that is required by the HERO Act or NYS Workers’ Compensation Law and provide feedback; review any workplace policy promulgated in response to any health or safety law; participate in any site visit by a government entity responsible for enforcing health and safety standards; review any employer health and safety report; and regularly schedule a meeting during work hours at least once per quarter.

Prohibition on Discrimination and Retaliation

Employers are prohibited from discriminating or retaliating against employees who exercise their rights under the HERO Act or the workplace health and safety plan, report violations of the HERO Act or the workplace health and safety plan, report a workplace health and safety concern or seek assistance/intervention with respect to airborne infectious disease exposure concerns, or refuse to work where the employee reasonably believes, in good faith, that such work will expose the employee, other employees, or the public to an unreasonable risk of exposure to an airborne infectious disease due to working conditions that are inconsistent with the law or the workplace health and safety plan. 

Penalties

An employer that fails to adopt a health and safety plan is subject to fines of $50 per day until a plan is adopted.  Should an employer fail to comply with an adopted plan, fines range from $1,000 to $10,000.  Retaliation against joint labor-management workplace safety committee members carries a civil fine of up to $10,000.

The HERO Act also provides employees with a private right of action to sue the employer for injunctive relief relative to failure to comply with applicable health and safety standards.  Available damages in such cases are capped at $20,000, and awards of attorneys’ fees are permissible in some circumstances.

Next Steps

The NYSDOL must release its model workplace health and safety standards by June 4, 2021.  From there, employers should review their existing COVID safety policies to ensure consistency with the model standards.  Then, employers should distribute the health and safety plan to their employees and ensure it is adopted into their employee handbook.  Supervisory employees should be provided with compliance training, including training on the HERO Act’s anti-discrimination and anti-retaliation provisions. Employers with 10 or more employees, should begin preparing to implement a joint labor-management workplace safety committee. 


Hurwitz & Fine continues to monitor and analyze state and federal updates to employment laws.  Please contact any member of the firm’s Labor & Employment team for guidance on these evolving issues at 716-849-8900, by e-mail, or visiting our website at www.hurwitzfine.com

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