Echoing his mantra of building back better, on May 5, 2021, New York State Governor Andrew Cuomo signed the New York Health and Essential Rights Act (NY HERO Act), which mandates extensive new workplace health and safety protections in response to the COVID-19 pandemic. While New York employers are already required to abide by Governor Cuomo’s executive orders and adopt the New York Forward industry-specific guidances and reopening guidelines, the act sets forth mandatory standards not just for COVID-19, but for all airborne infectious diseases.

Section 1 of the act requires the New York State commissioner of labor, in consultation with the state department of health, to create and publish a model airborne infectious disease exposure prevention standard and requires all private employers to implement such model or similar plans at their worksites. Section 1 takes effect on June 4, 2021.

Section 2 of the act, which takes effect on November 1, 2021, requires all private employers to allow employees to establish a joint employer-employee workplace health and safety committee authorized to raise health and safety issues and evaluate workplace health and safety policies.

Model Airborne Infectious Disease Exposure Prevention Standard

Coverage

Section 1 of the act applies to all nongovernmental employers, and applies to all employees of such employers, including part-time workers, independent contractors, individuals working for staffing agencies, and individuals making deliveries to a work site. The act defines a “work site” to include any physical space, including a vehicle, and employer-provided housing, subject to certain exceptions.

Airborne Infectious Disease Exposure Prevention Standard

The act mandates the commissioner, in consultation with the department of health, to publish “a model airborne infectious disease exposure prevention standard for all work sites, differentiated by industry, to establish minimum requirements for preventing exposure to airborne infectious diseases in the workplace.” The act states that the standard will address topics such as health screenings, face coverings, personal protective equipment, hand hygiene, cleaning and disinfecting of shared equipment and common use surfaces, and social distancing, amongst other topics. In addition, the act states that the standard will take into account “all applicable federal standards to the extent practical.”

In addition, the act states that the standard will contain anti-retaliation provisions, expressly prohibiting retaliation against employees for the following:

• “Exercising their rights” under the act

• “Reporting violations of this [act] or the applicable airborne infectious disease exposure prevention plan to any state, local, or federal government entity, public officer, or elected official.”

• “Reporting an airborne infectious disease exposure concern or seeking assistance or intervention with respect to … concerns, to their employer … or government entity.”

• “Refusing to work where such employee reasonably believes, in good faith, that such work … [poses] 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 governmental entity, including but not limited to, the minimum standards provided by the model airborne infectious disease exposure prevention standard, provided that the employee … notified the employer of the inconsistent working conditions and the employer failed to cure the conditions or the employer had or should have had reason to know about the inconsistent working conditions and maintained the inconsistent working conditions.”

Airborne Infectious Disease Exposure Prevention Plan

Employers may either establish a plan that adopts the model standard, or they may adopt “an alternative plan that equals or exceeds the minimum standards provided by the model standard.” If employers adopt an alternative plan and there is no collective bargaining representative, the employer must develop the plan with “meaningful participation of employees.”

If employees are represented by a union, employers must develop the plan “pursuant to an agreement with the collective bargaining [agreement (CBA)] representative.” Section 1 of the act states that its provisions may be waived by a CBA, provided that the waiver in the CBA explicitly refers to the act.

Distribution, Notice, and Posting Requirements

The plan must be included in a handbook, if the employer has one, or otherwise distributed to current employees as of the effective date of Section 1, at the time of hire of new employees, and “upon reopening after a period of closure due to airborne infectious disease.” In addition, employers are required to post the plan in a conspicuous location at the worksite.

Civil Penalties for Non-Compliance

Upon determination of a violation, the commissioner may “assess a civil penalty of not less than fifty dollars per day for failure to adopt an airborne infectious disease exposure prevention plan, or not less than one thousand dollars nor more than ten thousand dollars for failure to abide by an adopted airborne infectious disease exposure prevention plan.” “[I]f the commissioner finds that the employer has violated the provisions of [Section 1] in the preceding six years, he or she may assess a civil penalty of not less than two hundred dollars per day for failure to adopt an airborne infectious disease exposure prevention plan, or not less than one thousand dollars nor more than twenty thousand dollars for failure to abide by an adopted airborne infectious disease exposure prevention plan.” The commissioner may also order injunctive relief.

Private Right of Action

The act permits employees to bring a civil action for injunctive relief, and, if successful, they may recover attorneys’ fees. In addition, courts may order “payment of liquidated damages of no greater than twenty thousand dollars, 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.”

Remedies for retaliation claims may include ordering payments of liquidated damages, costs and reasonable attorneys’ fees to the employee; ordering reinstatement of employees; and awards of back pay.

The act cautions, however, that frivolous claims may result in “sanctions against the attorney or party who brought such action.”

Workplace Safety Committees

Employers are required to “permit employees to establish and administer a joint labor-management workplace safety committee … composed of employee and employer designees, provided that at least two-thirds are nonsupervisory employees.” The act specifies that non-supervisory employees must select the employee members. Where there is a CBA in place, the CBA representative will “be responsible for the selection of employees to serve as members of the committee.”

Each workplace safety committee and its designees are “authorized to perform the following tasks, including but not limited to:

• Raise health and safety concerns, hazards, complaints, and violations to the employer to which the employer must respond.

• Review any policy put in place in the workplace required by any provision of this [act] and any provision of the workers’ compensation law and provide feedback to such policy in a manner consistent with any provision of law.

• 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 safety and health standards in a manner consistent with any provision of law.

• Review any report filed by the employer related to the health and safety of the workplace in a manner consistent with any provision of law.

• Regularly schedule a meeting during work hours at least once a quarter.

Employers are required to “permit safety committee designees to attend a training, without suffering a loss of pay, on the function of worker safety committees, rights established under the Act, and an introduction to occupational safety and health.”

Section 2 also provides for anti-retaliation provisions, including prohibiting retaliation against employees who participate in the activities or establishment of a workplace safety committee. Remedies for retaliation claims may include ordering payments of liquidated damages, costs and reasonable attorneys’ fees to the employee; ordering rehiring or reinstatement of employees to their former positions with restoration of seniority or awards of front pay in lieu of reinstatement; and awards of lost compensation and damages.

Provisions of Section 2 may be waived by a CBA, provided that the waiver explicitly references the section.

Potential Legal Challenges: Preemption Under the Federal Occupational Safety and Health Act

Section 18 of the Occupational Safety and Health (OSH) Act of 1970 preempts state law provisions governing occupational safety and health issues covered by the Occupational Safety and Health Administration’s (OSHA) federal standards unless the state has its own OSHA-approved state plan. Twenty-nine states including California, Michigan, Washington, Oregon, North and South Carolina, Virginia and Maryland have their own state plans. Several of these state plans, including California and Virginia, have promulgated COVID-19 occupational safety and health standards.

New York does not have an OSHA-approved state plan, and is instead under federal OSHA’s jurisdiction. Pursuant to Section 18 of the OSH Act, New York and states like it are free to pass laws or regulations addressing occupational safety and health hazards as long as that hazard is not covered by a federal OSHA standard.

OSHA does not have a COVID-19 standard—at least not yet. The agency is apparently in the final stages of finalizing an emergency temporary standard (ETS) for COVID-19. Once that standard is in place, much of the New York legislation could be preempted. The ETS will likely address issues like a written COVID-19 prevention plan, employee training, and whistleblower rights. Also, even in the absence of a COVID-19 standard from OSHA, certain parts of the New York law may be preempted. For example, OSHA already has standards governing employee use of personal protective equipment and respirators. Of course, the New York law goes beyond COVID-19 and requires a general prevention program for all airborne infectious diseases. Under the OSH Act, the New York provisions would only be preempted as they relate to COVID-19 since that will be the subject of OSHA’s ETS.

Next Steps for New York State Employers

New York State employers may want to consider taking the following measures:

• Reviewing and revising current health and safety policies and practices

• Monitoring and reviewing materials published by the New York State Department of Labor to ensure compliance with the act’s model standard

• Implementing administrative functions to ensure compliance with the act

• Training supervisory and managerial employees, as well as human resources professionals, on the requirements of the act