Client Alert 
May 12, 2021

Last week, Governor Cuomo signed the New York HERO Act into law, which will require all private sector employers in New York to adopt a health and safety plan to protect employees from exposure to airborne infectious diseases. In addition, employers with more than 10 employees will be required to allow employees to form joint management-employee workplace safety committees. The basic provisions of the HERO Act are discussed below.

Safety Plan

The New York State Department of Labor (DOL) will be creating model airborne infectious disease safety standards (“Model Standards”) that will establish minimum requirements for preventing exposure to airborne infectious diseases in the workplace, including requirements pertaining to employee health screenings, face covering and PPE, cleaning and disinfection, social distancing and signage, and engineering controls such as proper air flow or ventilation.

All employers will be required to adopt the DOL’s Model Standards relevant to their industry (a “HERO Plan”) within 30 days after the DOL Commissioner publishes the Model Standards. Employers are free to adopt an alternate HERO Plan that exceeds the Model Standards, but if the employer chooses to do so the employer must seek the participation of employees or, for unionized employers, an agreement with their collective bargaining representative in preparing the HERO Plan. 

Once adopted, the HERO Plan must be distributed to employees and posted in a conspicuous location at the worksite. Employers must designate at least one supervisory employee to enforce HERO Plan compliance, and must verbally review the HERO Plan with employees as well as their right to report concerns regarding health and safety.

Safety Committee

Effective November 1, 2021, employers with at least 10 employees must permit employees to form a joint labor-management workplace safety committee that will be empowered to raise health and safety concerns to management, provide feedback on all employer policies required under the HERO Act, participate in government agency health and safety site visits, and meet at least once a quarter to discuss health and safety issues. There is no prescribed number of employees that may participate in a safety committee, but two-thirds of the committee must be comprised of non-supervisory employees.

No Retaliation

Employers may not retaliate against employees who report a health and safety violation or airborne infectious disease concern, participate in the workplace safety committee, or refuse to work due to their reasonable belief that the work site exposes them to health and safety risks that are inconsistent with the DOL Model Standards, provided the employer was notified of the condition or should have known of the condition and failed to cure it.

Consequences for Violation

Employers who violate the HERO Act may face civil penalties for failing to implement a HERO Plan, or for failing to abide by the terms of their HERO Plan. Repeat offenders may be subject to increased penalties. The DOL Commissioner may also order injunctive relief to stop the employer from violating the law. 

Employees may also commence a civil action seeking injunctive relief if the employer violates the HERO Plan. If successful, the employee can also be awarded costs and reasonable attorneys’ fees.

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Employers should be prepared to implement, post, and distribute a HERO Plan once the DOL’s Model Standards are published, and to provide training to their employees regarding the HERO Plan. Employers should also be ready to provide managers and human resources professionals with both compliance and anti-retaliation training. 
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If you have questions or would like additional information, please contact any of our Labor & Employment attorneys  or the primary EGS attorney with whom you work.

This memorandum is published solely for the informational interest of friends and clients of Ellenoff Grossman & Schole LLP and should in no way be relied upon or construed as legal advice.