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After a year of countless executive orders issued in response to the COVID-19 pandemic, the New York Legislature passed and Governor Cuomo signed the New York Health and Essential Rights Act, or “HERO Act”.  Effective June 4, 2021, the HERO Act requires all New York employers to establish an airborne infectious disease exposure prevention plan by either adopting a model standard that will be issued by the Department of Labor and the Department of Health, or by establishing an alternative plan that equals or exceeds the model standard. 

All New York Employers are required to comply with the HERO Act, regardless of size.  The Act also specifically covers part-time workers, independent contractors, domestic workers, home care and personal care workers, day laborers, farmworkers, other temporary and seasonal workers and individuals working for staffing agencies.  Government agencies are not required to comply with the HERO Act.

Effective November 1, 2021, the HERO Act will also require all employers that have at least ten employees in New York State to permit employees to establish a joint labor-management workplace safety committee.  

The HERO Act directs the Commissioner of Labor, in consultation with the department of health, to create model airborne infectious disease exposure prevention standards for all work sites, differentiated by industry.  We suspect the standards will be similar to the current New York Forward Guidance issued in connection with the State’s phased reopening plan.  The standards required by the HERO Act will establish minimum requirements for preventing exposure to airborne infectious diseases in the workplace, and will include, at a minimum:

(a)  Employee health screenings;

(b)  Face coverings;

(c)  Required personal protective equipment (“PPE”) applicable to each industry for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, which shall be provided, used, and maintained in a sanitary and reliable condition at the expense of the employer;

(d)  Accessible workplace hand hygiene stations and adequate break times for workers to use handwashing facilities as needed;

(e)  Regular cleaning and disinfecting of shared equipment and frequently touched surfaces such as workstations, touchscreens, telephones, handrails, and doorknobs, and all surfaces and washable items in other high-risk areas such as restrooms, dining areas/breakrooms, locker rooms, vehicles and sleeping quarters;

(f)  Effective social distancing for employees and consumers or customers, as the risk of illness may warrant, including options for social distancing such as sign postage or markers; increasing physical space between workers at the worksite; limiting capacity of customers or consumers; delivering services remotely or through curbside pick-up; reconfiguring spaces where workers congregate; flexible meeting and travel options; flexible worksites; or implementing flexible work hours such as staggered shifts;

(g)  Compliance with mandatory or precautionary orders of isolation or quarantine that have been issued to employees;

(h)  Compliance with applicable engineering controls such as proper air flow, exhaust ventilation, or other special design requirements;

(i)  Designation of one or more supervisory employees to enforce compliance with the airborne infectious disease exposure prevention plan and any other federal, state, or local guidance related to avoidance of spreading an airborne infectious disease as applicable to employees and third parties such as customers, contractors, and members of the public within the workplace;

(j)  Compliance with any applicable laws, rules, regulations, standards, or guidance on notification to employees and relevant state and local agencies of potential exposure to airborne infectious disease at the work site; and

(k)  Verbal review of infectious disease standard, employer policies and employee rights under the HERO Act.

New York employers will be required to provide the airborne infectious disease exposure prevention plan to its employees, to post it in a visible and prominent location within the worksite and if the employer provides an employee handbook to its employees, to include the plan in its handbook.

The HERO Act also prohibits retaliation against employees for exercising their rights under the HERO Act or under the applicable airborne infectious disease exposure prevention plan.

The Commissioner of Labor may assess civil penalties of up to $200 per day for failure to adopt an airborne infectious disease exposure prevention plan or up to twenty thousand dollars for failure to abide by an adopted airborne infectious disease exposure prevention plan.  The HERO Act also provides that an employee may bring a civil action against an employer in certain circumstances and that an employee may be awarded costs, reasonable attorneys fees and liquidated damages of no greater than twenty thousand dollars.

The Department of Labor will adopt regulations to effectuate the provisions of the HERO Act.  We will be monitoring this closely, as the Governor has already indicated that the Legislature agreed to make certain amendments to the law.

If you would like to schedule a consultation to talk about how this legislation may impact your business,  please feel free to contact Peter Weishaar at pweishaar@mccmlaw.com or 585.512.3542.

Peter's employment practice includes the representation of businesses and individuals in matters involving restrictive covenants, non-compete agreements, discrimination, failure to pay wages in State and Federal Courts, and before administrative agencies, including the New York State Division of Human Rights and the United States Equal Employment Opportunity Commission.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full-service law firm based in Rochester, New York, providing high-quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.