By:  Renee Jiang, Francine Foner, Esq., and Ty Hyderally, Esq.

On May 5, 2021, Governor Andrew Cuomo signed into law the New York Health and Essential Rights Act (“HERO Act”), a first-in-the-nation law designed to protect against the spread of airborne infectious diseases, such as COVID-19, in the workplace.  The HERO Act includes two parts: the first part requires employers to implement an airborne infectious disease exposure prevention plan, and the second part requires employers to permit employees to form workplace health and safety committees in which employees and employers jointly participate.  

The first part of the HERO Act goes into effect on June 4, 2021.  It directs New York State Departments of Labor and Health to create model safety plans to prevent airborne infectious diseases in the workplace.  The model safety plan will be broken down by industry and will require employers to conduct employee health screenings, provide face coverings and other PPE, enforce social distancing, and institute cleaning and disinfecting protocols.  Employers can establish their own plans as long as the plans are industry specific and meet or exceed the standards in the model safety plan established by the state agencies.  If an employer adopts its own plan, it must reach an agreement with the employees’ collective bargaining representative or, if no representative, with meaningful participation of employees.

Notably, this part of the HERO Act includes an anti-retaliation provision. Employees are protected from retaliation for reporting violations of the model safety plan, disease exposure concerns, seeking assistance or intervention with respect to disease exposure concerns, or refusing to return to work if an employee reasonably believes in good faith that they will expose themselves, their coworkers, or the public to a disease (subject to certain conditions).  Employers who retaliate are subject to liability of up to $20,000, as well as the possibility of recovering court costs, attorneys’ fees.

As for the second part of the HERO Act, effective November 1, 2021, all private employers in New York State with 10 or more employees must allow their employees to create joint labor-management workplace safety committees.  Committee members may raise workplace health and safety concerns, review employer workplace safety policies, participate in government site visits relating to workplace health and safety standards, and attend committee meetings and trainings related to workplace health and safety standards.

Since Governor Cuomo signed the HERO Act, the New York State Legislature has proposed amendments to include more specific instructions and extend deadlines for state agencies and employers to enact safety standards, and to limit employee litigation to situations where employers are “acting in bad faith and failing to cure deficiencies.”  However, even with such amendments, as Governor Cuomo stated, “This [Act] is a historic step forward for working people and a preventative measure that will ensure we’re better prepared for the next public health crisis.” (https://www.governor.ny.gov/news/governor-cuomo-signs-first-nation-ny-hero-act-law).

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