New York State’s HERO Act Requires Employers to Implement COVID-19 Workplace Safety Protocols

By: Matthew Damm

On May 5, 2021, New York Governor Andrew Cuomo signed into law the Health and Essential Rights Act (HERO Act), which requires all private New York employers to implement workplace safety plans to prevent the spread of COVID-19 and other airborne infectious diseases. Under the guidance of the New York Department of Health (NY DOH), the New York Department of Labor (NY DOL) will develop industry-specific model safety plans employers must adopt. Employers may develop their own plans provided that they meet or exceed the NY DOL models.

The model plans will address the following issues:

  1. Employee health screenings
  2. Face coverings
  3. Personal protective equipment that must be provided by the employer
  4. Hand hygiene
  5. Cleaning and disinfecting of shared equipment and high-touch surfaces
  6. Social distancing
  7. Appropriate compliance with mandatory or precautionary isolation or quarantine orders
  8. Engineering controls for ventilation and air flow
  9. Assignment of employer representative responsible for enforcement of the protocols
  10. Employee notice requirements
  11. Review of standards, policies and employee rights

Employers will be required to post their safety plan conspicuously in the workplace, incorporate the plan into any existing employee handbook and provide it to their employees upon hire or after reopening the workplace. 

Workplace Safety Committees

Employers with 10 or more employees will also be required to permit employees to establish a joint employer-employee workplace safety committee. The committee, which must be co-chaired by an employer representative and a non-supervisory employee and include at least two-thirds non-supervisory employees, will monitor and evaluate the employer’s protocols and compliance with health and safety standards. Forthcoming NY DOL regulations will likely further clarify employer obligations with regard to committee selection procedures and powers. The employee members of the committee must be allowed to convene during normal working hours at least once per quarter, and committee members must be allowed paid time off to attend a HERO Act training session facilitated by the NY DOL and NY DOH.

Penalties and Private Right of Action

Non-compliant employers could potentially be liable for a penalty of $50 per day for failing to adopt an appropriate plan and a fine of $1,000 to $10,000 for failing to comply with it. In addition, the law provides employees with the right to bring a lawsuit against their employer for non-compliance, with the ability to seek injunctive relief to force compliance with the law, and to recover attorneys’ fees and costs, as well as liquidated damages up to $20,000, unless the employer can demonstrate good faith attempts to comply. 

Effective Date and Employer Action Items

The law goes into effect on June 4, 2021. The section regarding the joint employer-employee committees does not take effect until November 1, 2021. While awaiting the NY DOL model plans, employers should begin planning for compliance now by reviewing their existing safety protocols, by scheduling planning meetings with those who will be responsible for implementation of the plan and by preparing for more employee involvement in workplace safety decisions.