New York Enacts New Workplace Health and Safety Law Affecting All EmployersMay 13, 2021
Since the COVID-19 pandemic, many employers navigating workplace safety have relied on guidance and recommendations from the New York Department of Health (“NYDOH”), the Centers for Disease Control and Prevention, and the Occupational Safety and Health Administration. Now, employers can anticipate receiving a new set of workplace standards based on their industry aimed at tackling the COVID-19 pandemic and other airborne infectious diseases.
On May 5, 2021, Governor Cuomo signed the New York Health and Essential Rights Act (“NY HERO Act”) into law (1) empowering the New York Department of Labor (“NYDOL”) in consultation with the NYDOH to set and enforce minimum industry-specific health and safety standards aimed at preventing exposure to airborne infectious diseases in the workplace, (2) requiring employers to develop an airborne infectious disease exposure prevention plan based on these standards, and (3) authorizing employees to create a joint labor-management workplace safety committee, among other requirements described below.
Health and Safety Standards and Airborne Infectious Disease Exposure Prevention Plan
The following provisions go into effect June 4, 2021:
Scope of the Industry-Specific Health and Safety Standards – The standards for each industry will address health screenings, face coverings, personal protective equipment, hand hygiene, cleaning and disinfection, social distancing and increasing physical space between workers, mandatory or precautionary orders of isolation or quarantine, and engineering controls. The standards will also address designating a supervisory employee to enforce the standards and providing notice to employees of potential exposure, among other requirements.
Development of a Plan – All New York employers will be required to establish an airborne infectious disease exposure prevention plan that meets the industry-specific minimum standards (the “Plan”). When developing the Plan, employers must obtain the “meaningful participation” of their employees or agree to a plan with their employees’ collective bargaining representative where applicable. However, the NY HERO Act contemplates that the NYDOL’s industry-specific minimum standards will be available for employers to adopt or expand upon to establish their Plan. When signing the NY HERO Act, Governor Cuomo announced that he had secured an agreement to make technical changes to the bill, including giving the NYDOL more specific instructions and timelines concerning the industry-specific minimum standards – so employers should expect further updates with respect to this requirement.
Distribution of the Plan – Employers must provide the Plan in writing in English and the primary language of each employee upon the effective date of the standards, upon hiring, and upon request. Employers must also post the Plan in a visible and prominent location within the worksite and in the employee handbook.
No Retaliation – Employers are prohibited from discriminating or retaliating against any employee who report violations of the Plan or exposure concerns to the employer or state, local, or federal agencies. Employees are also protected where they refuse to work based on a good-faith belief that doing so would expose them, other workers, or the public to airborne infectious disease due to violations of the Plan that the employer failed to rectify after being notified of the violation.
Enforcement – The NYDOL may investigate alleged violations of the minimum industry standards and where it finds a violation, it may assess penalties ranging from $50/day for failure to adopt a Plan to $1,000 to $10,000 for failure to abide by an adopted Plan. The law also provides increased penalties for repeat offenders. The NYDOL Commissioner or the New York Attorney General may also seek court intervention.
Employee Recourse – The NY HERO Act creates a private right of action for employees where alleged violations of the Plan create a “substantial” risk of death or serious physical harm. Employees may seek injunctive relief, costs, fees, and up to $20,000 in liquidated damages where the employer fails to establish a good faith defense.
Joint Labor-Management Workplace Safety Committee
Beginning November 1, 2021, all employers must allow their employees to create a joint labor-management workplace safety committee (“Committee”). Each Committee must be comprised of both management and 2/3 nonsupervisory employees and be co-chaired by a nonsupervisory employee and a member of management. Where there is a collective bargaining agreement in place, the collective bargaining representative is responsible for selecting the employee Committee members. Employers cannot dictate the members or chairs of the Committee and must not retaliate against employees who participate.
The Committee would be allowed to meet during work hours at least once a quarter. Members of the Committee must be allowed to attend a training on the function of these Committees, with pay.
The Committee is authorized by law 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 the NY HERO Act or the workers’ compensation law and provide feedback to such policy;
- 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;
- review any report filed by the employer related to the health and safety of the workplace; and
- regularly schedule a meeting during work hours at least once a quarter.
For more information on this issue or other employment matters, please contact:
Carol M. Goodman at +1 212 592 1465 or [email protected]
K. Heather Robinson at +1 973 274 2006 or [email protected]
Meaghan Roe at +1 212 592 1632 or [email protected]
Silvia Stockman at +1 212 592 1583 or [email protected]
© 2021 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.