Employers in the Empire State: Time to activate your NY HERO Act safety plan

As we wrote about here, the New York HERO Act requires employers to develop a safety plan to address airborne infectious diseases.  On September 6, Kathy Hochul, who replaced scandal-ridden Andrew Cuomo as state governor, designated COVID-19 as a “highly contagious communicable airborne infectious disease that presents a serious risk of harm to public health.” The designation will remain in effect until September 30, at which point Gov. Hochul will look at the transmission rate in New York State and determine whether to extend the designation.

According to the newly-released New York HERO Act FAQs, employers must take the following steps in light of the Governor’s designation order:

• Review and update the safety plan to ensure that it incorporates the most up-to-date information, guidance, and requirements from federal, state, and local governments related to COVID-19 and its variants.

• Finalize and activate the safety plan.

• Conduct a “verbal” (oral) review of the safety plan with employees.

• Provide each employee with a copy of the safety plan.

• Post a copy of the safety plan in a visible and prominent location at each work site.

• Make sure a copy of the safety plan is accessible to employees during all work shifts.

Please join our webinar on the Act, “The New York HERO Act: A Roadmap for Employers,” which will be presented from 1 to 2 p.m. ET Wednesday, November 3. You can register here.

Employers should also be aware of other important guidance in the New York HERO Act FAQs, which we cover with FAQs of our own:

What businesses are covered by the New York HERO Act?

The Act covers all non-governmental industries and work sites across New York. Exemptions exist for employees and employers within the coverage of a temporary or permanent OSHA standard on COVID-19, or airborne infectious disease standard. However, at this time, only the health care industry and employer-provided housing and transportation are covered by such an OSHA standard. The HERO Act does not cover telework or any worksite that the employer does not have the ability to control.

Is the Act specific to COVID-19?

No. The Act is intended to prepare for COVID-19 but also for any future airborne infectious diseases.

What if there is no “risk of serious harm” designation? Does the employer have to take any action or preventive measures?

Yes. Even in the absence of a designation by the New York State Commissioner of Health, employers must have an airborne infectious disease exposure prevention plan and provide it to employees within 30 days of the plan’s adoption. Employers must also review and update their plans to reflect modified aspects of business operations or to be consistent with the Department of Labor’s updates to the airborne infectious disease exposure prevention standard.

Does the employer have to give the written airborne infectious disease exposure prevention plan to its employees?

Yes. An employer must provide the written safety plan to employees within 30 days of adoption of the plan, 15 days after reopening after a period of closure caused by a designated highly contagious communicable disease, or upon the hiring of a new employee.

Are employers required to add this plan to their employee handbooks?

Yes.

What does the Act’s joint labor-management workplace committee requirement entail?

Employers with 10 or more employees must establish a joint labor-management workplace safety committee to ensure that employees play a central role in the safety of worksites and raise concerns to management about possible health threats. The joint labor-management workplace committee requirement goes into effect on November 1. We expect the New York State Department of Labor to issue regulations soon.

What enforcement mechanisms exist to address violations of the law?

Employers in violation of the Act may be subject to fines of up to $10,000 and daily penalties of $50.

What happens if an employer fires or takes another retaliatory action against an employee?

The Act has strong anti-retaliation protections prohibiting employers from taking adverse actions against employees for engaging in activities protected by the Act, such as establishing workplace safety committees, raising workplace health and safety concerns, or reviewing relevant employer policies. Victims of employer retaliation have the right to file a complaint with the Labor Department, provide information to the Labor Department, and testify in an official proceeding under the Labor Law.

Does an employer have to provide a written plan to employees in languages other than English?

Yes. An employer must provide the written plan in the employee’s primary language. If an employee’s primary language is one for which a model standard is not available from the Commissioner, the employer may provide that employee with an English language notice.

Is an employer required to explain the plan to its employees?

A “verbal” (oral) review of the plan must be conducted with all employees. However, the review is not required for employees of staffing agencies, contractors or subcontractors, or individuals delivering goods or transporting people to and from a worksite.

The oral review need not be in person. Employers should conduct the oral review in an appropriate manner that makes unlikely the transmission of an airborne infectious disease. For example, the employer can use videoconferencing software such Zoom or Teams.

Is the employer required to post the plan at the worksite?

Yes. The plan must be clearly visible and accessible to all employees within each worksite. We recommend posting the plan next to other required postings, such as equal employment opportunity and wage-hour postings.

What are the differences between the various industry-specific templates?

The industry-specific templates contain infection control sections specific to various industries. These specific industry templates include agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education private transportation, and retail.

If an employer’s business crosses over into multiple industries and environments, which template is appropriate?

Employers should select the most applicable template and customize the controls section as needed by assessing specific employee functions and worksite conditions. Alternatively, an employer may adopt more than one plan.

What if there is no template for the employer’s industry?

If there is no template available to an employer’s specific industry, employers may either adopt the model safety plan or create an alternative plan that equals or exceeds the minimum standards in the model plan.

Is the health care industry covered by the New York HERO Act?

Yes, unless they are covered by a temporary or permanent OSHA standard.

If the employer is based outside of New York but has employees in New York, are the New York employees covered by the Act?

Yes. But if the New York employee telecommutes or teleworks from a site at which the employer has no level of control (for example, from the employee’s home), the Act will not apply to the employee.

Are independent contractors covered?

Employers are required to have an airborne infectious disease safety plan in place for all work locations over which they have the ability to exercise control, including worksites staffed by independent contractors.

Must the written plan be distributed to independent contractors, individuals working for staffing agencies, and those who would not traditionally be defined as employees but are “employees” within the meaning of the Act?

Yes, but the oral review is not required for non-employees, as noted above.

If an employer develops an alternate plan for the worksite, does the alternate plan need to be approved by the New York State Department of Labor before it is adopted?

No. But, again, the minimum standards in the model safety plan must be met or exceeded.

As always, please contact the attorneys in Constangy’s New York City Office if you have any questions about the Act.

Chris Blair has recently joined Constangy after getting his law degree from DePaul University and interning for the general counsel of a major hospital and the general counsel of another large corporation. Among other things, he helped both organizations develop COVID-19 protocols.

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