The New York State Department of Labor (NYSDOL) has released its HERO Act minimum standards and template policies related to airborne infectious disease prevention. Employers now have 30 days after the standards’ publication – until August 5, 2021 – to either: (1) adopt one of the model standard exposure prevention plans applicable to their industry, or (2) develop and establish an alternative prevention plan that meets or exceeds the minimum standards.
After adopting a plan, employers will then have an additional 30 days (until September 4, 2021) to provide their written exposure prevention plan to employees in English and the primary languages of their employees, if a translation is made available by the NYSDOL. Employers must also provide new employees with their exposure prevention plan upon hire, as well as provide the plan to all employees within 15 days of a reopening due to airborne infectious disease related closure.
Significantly, however, in releasing its HERO Act standards, NYSDOL clarified that, while employers must act quickly to prepare and distribute an exposure prevention plan for potential future use, the exposure prevention plans only need to be activated “when an airborne infectious disease is designated by the New York State Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health.” Even as COVID-19 infections continue in New York, no such designation from the Commissioner of Health is in effect at this time, and the safety measures (“controls”) contained in exposure prevention plans are not currently required to be activated. Thus, employers will only be required to implement these written exposure prevention plans and the safety controls therein if/when the Commissioner of Health makes such a designation (e.g., if the COVID-19 pandemic were to worsen once again).
Below we include information on the HERO Act, as it was amended in June 2021, as well as next steps for New York employers.
Brief Overview of the HERO Act:
In May 2021, New York State enacted the Health and Essential Rights Act (HERO Act), which was later amended in June 2021 in several significant ways. As amended, the HERO Act creates new sections of the New York Labor Law and imposes significant new health and safety obligations on New York employers, including the development of minimum workplace health and safety standards for preventing exposure to airborne infectious diseases at employers’ worksites (as set forth more fully below).
Joint Labor-Management Workplace Safety Committees
Additionally, by November 1, 2021, and separate from the NYSDOL standards and model policy templates, employers must begin permitting employees to form joint labor-management workplace safety committees with employee and employer designees. The HERO Act allows for one joint labor-management workplace safety committee per worksite, and only applies to employers with 10 or more employees. The committee must be allowed to raise workplace health and safety concerns, review employer policies related to workplace health and safety topics, participate in government site visits relating to workplace health and safety standards, and attend committee meetings and trainings related to workplace health and safety standards. The HERO Act states that at least 2/3 of the membership of any committee must consist of non-supervisory employees and must be co-chaired by both an employer representative and a non-supervisory employee. Members of such committees will be allotted two paid hours quarterly for meetings and four paid hours quarterly for committee trainings, all of which can take place during working hours.
Enforcement Provisions & Anti-Retaliation Measures
If an employer fails to adopt a written exposure prevention plan, it may be subject to a penalty of at least $50 per day until the employer implements such a plan. An employer that fails to comply with its adopted plan’s health and safety measures during a designated airborne infectious disease period can be subject to a civil fine ranging from $1,000 to $10,000. Fines may increase for repeat violations.
In addition to enforcement fines, the HERO Act creates a private right of action for employees, though the scope of this private right of action was significantly narrowed by the June 2021 amendments. If an employer fails to comply with its exposure prevention plan, employees may bring a claim in court after providing the employer with 30 days’ notice and an opportunity to cure a violation, except they do not have to provide 30 days’ notice where they “alleges with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith.”
Notice may be given by the employee, another employee, or an employee representative, and may be issued verbally or in writing. Any such claim must be based on claimed violations “that create . . . a substantial probability that death or serious physical harm could result to the employee.” Where the employer corrects the claimed deficiency, the employee no longer has a viable cause of action. Any private claim must be brought within six months of the employer’s knowledge of the unsafe condition. To the extent that records exist between the employer and an employee regarding a potential risk of exposure, the employer must maintain such records for two years after the conclusion of the designation of a high risk disease from the Commissioner of Health.
The HERO Act also includes broad-based anti-retaliation provisions:
Importantly, employers may not retaliate against employees who refuse to work at a worksite where an employee in good faith reasonably believes that such work would expose him or her, or other individuals, to an unreasonable risk of airborne infectious disease exposure, provided that either (i) the employee (or their representative) notified the employer of the workplace condition(s) at issue and the employer failed to cure the condition(s); or (ii) the employer had or should have had reason to know about the working condition(s) at issue and nonetheless failed to act. The existence of working conditions inconsistent with the HERO Act’s provisions or other orders from governmental entities would meet this threshold requirement.
Further, employers may not take adverse employment actions against employees (which includes contractors, temporary workers, etc.) for exercising their rights under the HERO Act or under the applicable airborne infectious disease exposure prevention plan (including reporting violations of the HERO Act or a plan adopted under this section, or any airborne infectious disease exposure concerns, to any state, local, or federal government entity, public officer or elected official in good faith).
NYSDOL Standards and Model Policies:
On July 6, 2021, the NYSDOL published its general Airborne Infectious Disease Exposure Prevention Standard (the “General Standard”) alongside a number of industry-specific standards for employers in the following industries: agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail (all of which can be found here).
The General Standard applies to all private employers and employees in New York State, except (i) where an industry-specific standard applies (as noted above); or (ii) for any employees within the coverage of a temporary or permanent standard adopted by the Occupational Safety and Health Administration setting forth applicable standards regarding COVID-19 and/or airborne infectious agents and diseases (e.g., healthcare employees covered by OSHA’s COVID-19 emergency temporary standard). The General Standard clarifies that the HERO Act’s provisions are not to be interpreted as relieving any employer from the requirements of any other state or federal guidance or requirements related to preventing the spread of an airborne infectious agent or disease to employees and third parties such as customers, contractors, and members of the public within the workplace. Further, the General Standard does not apply to any seasonal or endemic infectious agent or disease, such as the seasonal flu, that has not “been designated by the Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health.”
Exposure Prevention Plan Basics
The General Standard requires each employer to establish a written exposure prevention plan designed to eliminate or minimize employee exposure to airborne infectious agents in the event of an outbreak of an airborne infectious disease. Employers must develop such a plan for each “worksite,” defined under the HERO Act to mean “any physical space, including a vehicle, that has been designated as the location where work is performed over which an employer has the ability to exercise control” – however, a “worksite” does not include a telework site unless the employer “has the ability to exercise control of such site.”
Alongside the General Standard, NYSDOL also published a Model Airborne Infectious Disease Exposure Prevention Plan, which employers can complete and adopt to satisfy their obligation.
Employers that wish to develop their own prevention plan (called an “alternative plan”) must (i) consider and incorporate controls applicable to the worksite as set forth in the General Standard; and (ii) adopt such alternative plan under an agreement with the collective bargaining representative, if any, or with the meaningful participation of employees where there is no collective bargaining representative, for all aspects of the plan. The General Standard is silent on what “meaningful participation” by employees might mean in this context.
Employers must make the exposure prevention plan available, upon request, to all employees, employee representatives, collective bargaining representatives, and independent contractors, as well as to the NYSDOL or the New York State Department of Health (NYSDOH).
Exposure Prevention Plan During an Airborne Infectious Disease Outbreak
When a highly contagious communicable disease is designated by the Commissioner of Health as presenting a serious risk of harm to the public health, employers must:
Immediately review their exposure prevention plans and update the plans, if necessary, to ensure that they incorporate current information, guidance, and mandatory requirements issued by federal, state, or local governments related to the infectious agent of concern;
Finalize and promptly activate the worksite exposure prevention plan;
Provide a verbal review of the employer’s safety policies, employees’ rights under the HERO Act, and the written exposure prevention plan (which can be conducted via audio or video conference technology);
Provide each employee with a copy of the exposure prevention plan in English or in the language identified as the primary language of such employees, if the NYSDOL makes a translation available;
Post a copy of the exposure prevention plan in a visible and prominent location at the worksite; and
Ensure that a copy of the exposure prevention plan is accessible to employees during all work shifts.
While the airborne infectious disease designation remains in effect, the General Standard states that employers must ensure that their exposure prevention plans are effectively followed by:
Assigning enforcement responsibilities and ensuring that adequate enforcement of the exposure prevention plan takes place;
Monitoring and maintaining exposure controls (as defined below); and
Regularly checking for updated information and guidance provided by the NYSDOH and the CDC concerning the airborne infectious disease and updating the exposure prevention plan, when necessary, so that the plan reflects current NYSDOH and CDC recommended control measures.
Exposure Controls During an Outbreak
The General Standard outlines the “exposure controls” that employers must implement in the event of an outbreak of an airborne infectious disease (as designed by the Commissioner of Health). Again, these measures are not currently required, as the Commissioner of Health has not designated such an event, despite the ongoing COVID-19 pandemic. These controls should be selected based on the types and level of exposure risks employees have during all activities performed at the worksite. Many of the General Standard’s “minimum” control measures will be familiar to employers as NYSDOL has carried over many of the “New York FORWARD” reopening guidelines the State previously mandated from May 2020 through June 2021:
In addition to these “minimum” controls, the NYSDOL Model Airborne Infectious Disease Exposure Prevention Plan envisions scenarios in which the “minimum controls alone will not provide sufficient protection for employees.” In such cases, employers should evaluate whether “additional controls . . . may be necessary.” These potential “advanced” controls include elimination of risky activities; engineering controls (e.g., ventilation changes and the use of disinfection systems and partitions); administrative controls (e.g., limiting the use of shared workstations, increasing space between workers, or allowing fewer workers to maintain only essential operations).
Now that the NYSDOL standards and model policy templates have been released, private New York employers of all sizes will be required to:
Develop and implement a health and safety plan that complies with or exceeds the NYSDOL standards;
Post the health and safety plan in the work site; and
Distribute the plan to all employees (broadly defined to include contractors, temporary workers, etc.) within employer work sites. Employers must provide the written airborne infectious disease exposure prevention plan to its employees both in English and in any language identified by employees as the primary language of such employees (NYSDOL has promised forthcoming translated documents).
While employers do not currently need to “activate” their exposure prevention plans at this time, COVID-19 remains ever present, and the ongoing pandemic could necessitate activation of these plans in the future. As a reminder, in addition to the HERO Act requirements set forth above, New York employers must still comply with the State’s face covering and distancing requirements for individuals who are not fully vaccinated.
©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XI, Number 189