This article analyzes the recently enacted New York Health and Essential Rights Act (“HERO Act”). The HERO Act mandates new workplace health and safety protections required by employers, some as soon as August 6, 2021, in response to the COVID-19 pandemic.
On May 5, 2021, Governor Cuomo signed the NY HERO Act into law. The purpose of the Act is to protect employees against exposure and disease during a future airborne infectious disease outbreak. The New York State Department of Labor (“NYS DOL”) worked together with the NYS Department of Health (“NYS DOH”) in developing (1) a new Airborne Infectious Disease Exposure Prevention Standard, (2) a Model Airborne Infectious Disease Exposure Prevention Plan, as well as (3) various industry-specific model plans for employers to adopt in order to combat a situation of an airborne infectious disease.
The eleven industry-specific templates provided by the NYS DOL currently include agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation and retail. Where no industry-specific plan is applicable, there is a model plan which may be used. Employers have the option of either adopting one of the applicable policy templates/plans provided by the NYS DOL on the NYS DOL website or establishing an alternative plan which satisfies or exceeds the standard’s minimum requirements. The NYS DOL currently has standard and model plans available in English (with Spanish and other languages on the way). Employers must provide the plan to current employees in English and in the employee’s primary language (if then available in the model plans).
Employers are required either to provide a copy of the adopted airborne infectious disease exposure plan to their employees or to incorporate the plan into their company handbook which needs to be distributed to all current employees, as well as to future new employees upon hire. Additionally, employers are required to post the plan in a visible and prominent location within each worksite.
Significantly, while the law requires each employer to adopt a prevention plan by August 6, 2021, and comply with the posting and employee notice requirements by September 5, 2021 currently, the New York Department of Labor has not required that any such plan be in effect as of the writing of this article. Actual implementation of the prevention plan is not required unless and until the New York Commissioner of Health declares an infectious disease outbreak.
It should be noted that the HERO Act applies to all New York State employers and that the term “employees” in the HERO Act includes, among other things, part-time workers, independent contractors, domestic workers, home care and personal care workers, day laborers, farmworkers and other temporary and seasonal workers.
Additionally, on November 1, 2021, employers with ten or more employees must begin to allow their employees to form a joint employer-employee workplace safety committee for the purpose of raising workplace health and safety issues and evaluating applicable policies.
In light of the NY HERO Act, it would be prudent for New York State employers to promptly review their human resources policies and employee manuals to ensure compliance with this new law.
Please contact Avi Lew or Michael Korsinsky, partners at Korsinsky & Klein LLP, if you need assistance reviewing your human resources policies, preparing or updating your employee handbooks, or for any questions you may have about employment law issues.
Korsinsky & Klein LLP