Well over a year after the pandemic began, federal OSHA has declined to adopt a set of COVID-19 regulations for general industry.  Just yesterday, federal OSHA announced that it had “completed” the rulemaking process for the COVID-19 emergency temporary standard, which will only apply to healthcare industry employers.  This long awaited rule is expected to be released later today.  While federal OSHA has been evaluating whether a COVID-19 ETS is even necessary, several states have been aggressive in passing their own workplace safety and health rules related to COVID-19.  Most recently, New York State passed the New York Health and Essential Rights Act (HERO Act), which went into effect just last week on June 4, 2021.  New York State joins a number of states that have promulgated COVID-19 regulations, including California, Virginia, Oregon, Michigan, and, in the near future, Maryland.  In light of federal OSHA’s decision to adopt COVID-19 regulations solely related to the health care industry, several other states may take action to implement their own COVID-19 regulations.  New York State’s HERO Act, however, goes even one step further.  The HERO Act is not solely focused on COVID-19, it addresses any and all airborne infectious diseases.

New York is also the first state in the country to require its Department of Labor to develop “industry-specific” health and safety standards for private sector employers to reduce the risk of airborne illnesses for employees (including but not limited to COVID-19).  New York employers should move quickly to adopt safety and health plans and revise employee handbooks to conform with the Act’s requirements.  Below is an overview of the key provisions of the Act.

Safety Plans

Under Section 1 of the HERO Act, all private employers, of any size, are required to create a written prevention plan of health and safety standards to protect employees from workplace exposure to airborne infectious diseases.  The New York State Department of Labor (NY DOL), in consultation with the Department of Health, was required to publish industry-specific model safety and health plan by June 4, 2021, however that deadline was not met.  As a condition to signing the act, Governor Cuomo secured an agreement with the New York State Legislature to make technical changes to the Act, which included providing the NY DOL and employers more specific instructions in developing and implementing the workplace standards.  The NY DOL indicated that the model plan is currently being drafted, but there is no firm deadline on when that will be issued.

However, the HERO Act does specifically outline what the model standard is required to address, which includes the following topics:

1. employee health screenings,
2. face coverings,
3. personal protective equipment,
4. workplace hygiene stations,
5. regular cleaning and disinfecting of shared equipment and surfaces,
6. compliance with quarantine guidelines in cases of exposure,
7. compliance with applicable engineering requirements, such as air flow and exhaust requirements,
8. compliance with local laws,
9. the appointment of supervisory employees to maintain enforcement of these new standards,
10. regular reviews of employer polices, and
11. social distancing.

Employers are required to either adopt the model plan or create their own plan, which meets or exceeds the minimum requirements issued by the NY DOL, and provide the plan to all current employees and to new hires upon hire.  Furthermore, employers are required to post a copy of the plan in a visible location in the workplace and add the plan to the employee handbook.  Employers that choose to create their own exposure prevention plans must develop such plans with their collective bargaining representatives if employees are represented by a union or, if not represented by a union, include meaningful participation from employees.

Civil Penalties and Private Right of Action

Employers may be subject to daily fines for instances of non-compliance with the Act.  Specifically, the NY DOL can fine employers $50 per day for failure to adopt a safety plan and $1,000 to $10,000 for failure to abide by the safety plan.  These fines may increase if the commissioner determines that an employer has violated the Act in the preceding six years.  Perhaps even more concerning, the HERO Act gives employees a private right of action for injunctive relief, attorneys’ fees (if successful), and payment of liquidated damages of no greater than $20,000, unless the employer proves a good faith basis to believe that the established health and safety measures were in compliance with the applicable airborne infectious disease standard.  In sum, it is imperative that employers act swiftly to comply with the Act’s requirements.

Workplace Safety Committee Requirement

Section 2 of the HERO Act requires private employers with ten or more employees to permit employees to establish a joint employer-employee workplace safety committee composed of employee and employer designees, provided that at least two-thirds are nonsupervisory employees.  Non-supervisory employees must select the employee members.  Furthermore, employers must allow employees to attend training—without suffering a loss of pay—on the function of worker safety committees, rights established under this section, and an introduction to occupational safety and health.

The workplace safety committee and its members are authorized to perform certain tasks, including but not limited to:

• Raise health and safety concerns, hazards, complaints, and violations to the employer to which the employer must respond.
• Review any policy put in place in the workplace required by any provision of this [Act] and any provision of the workers’ compensation law and provide feedback to such policy in a manner consistent with any provision of law.
• Review the adoption of any policy in the workplace in response to any health or safety law, ordinance, rule, regulation, executive order, or other related directive.
• Participate in any site visit by any governmental entity responsible for enforcing safety and health standards in a manner consistent with any provision of law.
• Review any report filed by the employer related to the health and safety of the workplace in a manner consistent with any provision of law.
• Regularly schedule a meeting during work hours at least once a quarter.

Employers have time to implement compliant safety committees, as that requirement does not take effect until November 1, 2021.

New York Passes Series of Amendments to NY HERO Act

The New York State Legislature wasted no time in reviewing and revising the NY HERO Act after Governor Cuomo signed it into law on May 5, 2021 subject to an agreement with the legislature to make technical amendments.  The New York Legislature passed a series of amendments to the HERO Act, which was promptly signed by Governor Cuomo on Friday, June 11, 2021.  The amendments clarify and modify some of the key requirements outlined in the original bill related to workplace safety committees and enforcement actions, and they also provide a delay in implementation of the written workplace safety plan requirement:

• Written Plan Implementation Update: The amendments delay the issuance of the NY DOL industry-specific model safety standards, which were originally supposed to be issued by June 4, 2021.  That deadline came and went without any signal from the legislature, Governor Cuomo, or NY DOL that deadline to comply with the safety plan requirements was suspended.  The amendments formally delay the deadline for NY DOL to publish its model industry-specific standards to July 5, 2021, and employers have been provided a clear timeline to create and implement the safety plan.  Employers must adopt an airborne infectious disease plan within 30 days after publication of the NY DOL model plan. Employers will also have sixty days from the date the NY DOL publishes the model standard relevant to its industry to provide the written plan to employees.
• Workplace Safety Committee Update: The amendments reduce the role of the joint labor-management workplace safety committees that employers must allow employees to establish.   The amendments clarify that employers are only required to permit one committee per worksite, and employers do not need to create a specific HERO Act committee if they already have a general workplace safety committee, as long as the existing committee complies with the provisions in the HERO Act.  The authority provided to workplace safety committees under the Act was also slightly diminished.  The original bill permitted committees to review and provide feedback on any policy required under the Act and, more broadly, under the New York workers’ compensation law. Now, the scope of workplace safety committee review of employer policies is limited to those “relating to occupation safety and health.”

Finally, the amendments reduced the amount of paid time available to workplace safety committee members for meetings and trainings.  While the original bill did not put a cap on the length of meetings or an employer’s responsibility to pay committee members for training, the amendments state that committee meetings during working hours are now limited to two hours, and committee trainings are limited to no more than four hours.  Employees participating in those committees must still be paid for their participation in those meetings and trainings.

• Employer Liability & Civil Enforcement Update: The Act gives employees the right to file suit against employers for violations of the Act.  But the amendments added a requirement for employees to give 30 days’ notice to employers before filing a civil action.  This is intended to give employers an opportunity to correct the violation.  However, an employee does not need to provide this notice if they allege with particularity that the employer has demonstrated “an unwillingness to cure a violation in bad faith.”

Additional employer-friendly revisions were added to deter frivolous lawsuits. Specifically, the Amendments eliminate the court’s authority to award liquidated damages up to $20,000 unless the employer was able to provide good-faith grounds to believe that the health and safety measures in place were in compliance.  In other words, the relief to employees in private suits against an employer is limited to injunctive relief and reasonable attorneys’ fees and costs. The amendments also strike the provision allowing a party to seek sanctions if an action, defense, counterclaim, or crossclaim is found meritless and undertaken for the purposes of harassment or malicious injury.  Furthermore, employers may now also be awarded reasonable attorneys’ fees and costs for frivolous claims, which the court can assess against either the employee or the attorney, or both.

While these are mostly welcomed revisions for employers, the Act’s primary requirements of developing and adopting a written safety plan and developing a workplace safety committee (for those workplace with 10 or more employees) are still burdensome.  Employers should closely monitor the NY DOL website for the model standards, which should be issued sometime over the next 20 days.  Employers need to be prepared to move quickly once the model standards are issued and update their written plans accordingly.

The Employment Law Group at Conn Maciel Carey LLP is well-versed in the Act’s requirements and can assist in drafting compliant safety plans, developing safety committees, and ensuring compliance with the HERO Act’s health and safety requirements.  Please do not hesitate to reach out to us with any questions.