Q: I understand the NY DOL recently released model plans for the NY HERO Act. What do employers need to do to comply?
A: The New York Health and Essential Rights Act (NY HERO Act or Act) requires employers to implement workplace health and safety measures to protect employees during a future airborne infectious disease outbreak. The Act applies to all private employers and to all worksites.
The Act contains two primary components: (1) a requirement to develop prevention plans; and (2) a requirement to permit employees to establish workplace safety committees.
The NY HERO Act was enacted on May 5, and originally intended to take effect 30 days thereafter, but later extended to July 5. Employers have 30 days, or until August 5, to adopt a prevention plan that meets the Act’s requirements. Employees then have an additional 30 days to provide a copy of the prevention plan to employees in English or the employee’s primary language (if not English).
Employers are not required to actually implement their prevention plans until the NY Commissioner of Health designates an outbreak of an airborne infectious disease. Currently, there is no such designation, so there is no requirement to implement any prevention plan. As discussed in more detail below, implementation involves employee training and enforcement measures (as opposed to adoption, which requires having a plan in place and distributing it to employees).
Employers may either develop their own prevention plan or adopt one of the released NY DOL template plans. The NY DOL has created a general template plan and a number of industry-specific template plans, including ones for construction, delivery services, food services, and retail. Employers who develop their own plan must do so with the “meaningful participation of employees,” and the plan must be tailored and specific to the hazards of the employer’s specific industry and worksite.
A prevention plan must include the following aspects:
- Employee health screenings;
- Face coverings (which must be provided at no cost to employees);
- Personal protective equipment (PPE);
- Hand hygiene stations and handwashing protocols;
- Cleaning and disinfecting of shared equipment, frequently touched surfaces, and common areas;
- Social distancing; and
- Compliance with mandatory or precautionary orders of isolation or quarantine.
If the type of work and worksite does not allow for sufficient protection under only the above protocols, employers must determine whether additional protections are required, such as:
- Temporary elimination of services that require close proximate contact;
- Air filters and purifiers;
- Automatic disinfection systems; and
- Installation of barriers.
Upon an outbreak of an airborne infectious disease (as designated by the NY Commissioner of Health), employers must:
- Immediately review their prevention plan and update as needed to ensure compliance with federal, state, and local government mandates and guidance related to the infectious disease;
- Activate their prevention plan;
- Provide verbal review of the prevention plan to their employees (either in person or virtually);
- Provide each employee with a copy of the prevention plan in English or in each employee’s primary language; and
- Post a copy of the prevention plan at the worksite, and ensure a copy is accessible to employees during all work shifts.
During the outbreak, employers must:
- Ensure the prevention plan is adequately enforced;
- Regularly check for updated information provided by the NY Department of Health and Center for Disease Control and update the plan as needed; and
- Designate one or more supervisory employees to enforce compliance with the prevention plan and any other federal, state, or local guidance.
Employers without prevention plans may be assessed a minimum penalty of $50 per day until a plan is implemented. Employers not complying with their prevention plan during a designated airborne infectious disease period may be assessed a civil fine of between $1,000 and $10,000. Employees can also bring a lawsuit seeking injunctive relief, and if successful, can recover attorneys’ fees and costs and liquidated damages of up to $20,000. Before bringing a lawsuit, an employee must give the employer notice of the alleged violation, and if the employer corrects the violation, no lawsuit can be brought.
The Act also requires employers to permit employees to establish and maintain workplace safety committees to raise workplace health and safety concerns and review relevant employer policies. This portion of the Act is effective November 1, and only applies to employers with 10 or more employees (versus the prevention plan portion, which applies to all employers). The Act does not require employers to actually create such committees; rather, if employees wish to form committees, the employer must permit them. The Act includes rules for committee formation and membership, as well as paid time for committee members to devote to committee activities (up to 4 hours for an initial training and up to 2 hours per quarter for committee meetings).
For assistance navigating the NY HERO Act’s requirements, please reach out to a member of Troutman Pepper’s Labor and Employment team.