What You Need to Know About the New York Health and Essential Rights Act

On May 5, 2021, New York State Governor Andrew Cuomo signed the New York Health and Essential Rights Act (“HERO Act”), adding two new sections to the New York Labor Law.   The HERO Act requires all New York employers to implement extensive workplace health and safety protections against COVID-19 and other airborne infectious diseases.

Notably, the HERO Act creates a private right of action for employees to bring claims against their employers for failing to comply with applicable workplace health and safety standards and protects employees from adverse action after exercising their rights.

New Workplace Health and Safety Plans

Effective June 4, 2021, Section 1 of the HERO Act requires the New York State Department of Labor (“NYSDOL”), in consultation with the New York State Department of Health, to design and publish a model airborne infectious disease exposure prevention standard for all worksites and requires all private employers to implement such model or similar plans at their worksites.

Specifically, the NYSDOL will provide industry-specific procedures and methods addressing the following topics: (1) employee health screenings; (2) face coverings; (3) personal protective equipment; (4) hand hygiene; (5) regular cleaning and disinfecting; (6) social distancing; (7) compliance with mandatory or precautionary orders of isolation or quarantine; (8) compliance with applicable engineering controls; (9) designation of supervisory employees to enforce compliance; (10) compliance with employee notice requirements; and (11) verbal review of standards, policies, and employee rights.

Employers have the choice to either adopt the NYSDOL model plan or to create, with “meaningful participation of employees,” their own safety plan that meets or exceeds the NYSDOL minimum standards.  Employers are obligated to post the adopted plan in the workplace, effectively distribute copies of the plan to all employees in their primary language and incorporate the plan into any existing employee handbook.

Joint Labor-Management Workplace Safety Committee

Effective November 1, 2021, Section 2 of the HERO Act requires employers with at least 10 employees to allow employees to establish and administer a “joint labor-management workplace safety committee,” comprised of at least 2/3 non-supervisory employees.

The HERO Act authorizes committees to: (1) raise worksite health and safety concerns; (2) review and comment on any employer policy required by the HERO Act; (3) review and comment on any employer policy required by any health and safety law; (4) participate in government workplace site visits; (5) review and comment on employer health and safety reports; and (6) schedule and meet during work hours at least once per quarter.

Enforcement Provisions

Under the HERO Act, if an employer fails to adopt a health and safety plan, the NYSDOL may fine the employer $50 per day until the employer implements such a plan.  If an employer fails to comply with its adopted plan’s health and safety standards, the NYSDOL may fine the employer between $1,000 to $10,000.

The HERO Act also permits employees to bring a civil action for injunctive relief against their employer for failure to comply with the applicable airborne infectious disease health and safety standards.  Courts may award up to $20,000 in liquidated damages and attorneys’ fees to a prevailing plaintiff, unless the employer proves a good faith basis to believe that it complied.

Anti-Retaliation Provisions

The HERO Act prohibits an employer from discriminating, threatening, retaliating against, or taking adverse action against an employee for: (1) reporting a health and safety plan violation or airborne infectious disease concern; (2) participating in joint labor-management workplace safety committees; and/or (3) refusing to work due to their reasonable belief that the work site exposes them to health and safety risks that are inconsistent with the NYSDOL standards or other applicable laws.

Remedies for retaliation claims may include directing payments of liquidated damages, costs and reasonable attorneys’ fees to the employee; directing rehiring or reinstatement of employees or awards of front pay; and awards of back pay.

Did Your Employer Violate Your Rights Under the HERO Act?  

Given that New York does not generally have expansive state occupational safety and health laws, New York employers face uncharted territory when updating their current health and safety plan to comply with forthcoming industry standards and dealing greater employee engagement in health and safety policies, which may result in them violating the law.

If you have questions about your rights under the HERO Act or believe that your employer has failed to comply with applicable airborne infectious disease standard, we can help.  To discuss your situation or to speak to an attorney familiar with workplace rights, contact Borrelli & Associates, P.L.L.C. to schedule a free consultation through one of our websites, www.employmentlawyernewyork.com, www.516abogado.com, or any of our phone numbers: (516) 871-4267, (516) ABOGADO, or (212) 679-5000.