Providing Developments & Insight on Trending Topics in Employment Law

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While New York announced significant easing of COVID-19 restrictions in recent days and weeks, and while the Centers for Disease Control and Prevention appears to be loosening its COVID-19-related guidelines, the state continues its efforts to protect its employees with regard to COVID-19 safety with legislation signed by Gov. Andrew Cuomo late Wednesday night. The New York Health and Essential Rights Act, or NY HERO Act (<a href="https://www.nysenate.gov/legislation/bills/2021/s1034">S.1034B/A.2681B</a>), has four sections, which all New York employers should be aware of:

Section 1 amends the labor law by adding a new section, 218-b, requiring the Commissioner of Labor, in consultation with the Department of Health, to create an airborne infectious disease standard covering all private employers. Once in place, the required safety standard (a model of which will be created by the state and differentiated by industry) will include requirements for procedures and methods for (a) employee health screenings; (b) face coverings; (c) required personal protective equipment; (d) workplace hand hygiene stations and maintaining healthy hand hygiene; (e) cleaning and disinfecting of shared equipment and frequently touched surfaces; (f) effective social distancing; (g) compliance with orders of isolation or quarantine; (h) compliance with applicable engineering controls; (i) designation of supervisory employee(s) to enforce compliance with the plan and related applicable laws; (j) compliance with applicable notification laws, rules, regulations, standards and guidance; and (k) verbal review of infectious disease standards, employer policies and employee rights. The plan must be posted and included in an employee handbook (to the extent the employer provides an employee handbook) and must be made available to all employees and independent contractors, employee representatives, collective bargaining representatives and the state upon request.

Employers are also prohibited from discriminating against, threatening or retaliating against any employee for (a) exercising their rights under this section or under the applicable airborne infectious disease exposure prevention plan; (b) reporting violations of this section or the applicable airborne infectious disease exposure prevention plan; (c) reporting an exposure concern to or seeking assistance or intervention from their employer, government, public officer or elected official; and (d) refusing to work where such employee reasonably believes, in good faith, that such work exposes them, other workers or the public to an unreasonable risk of exposure due to the existence of working conditions that are inconsistent with laws, rules, policies or orders of any governmental entity, provided the employer was notified about and failed to cure the inconsistent working conditions (or the employer had or should have had reason to know about and maintained the inconsistent working conditions).

Section 2 amends the labor law by adding a new section, 27-D, to permit the creation of joint employer-employee workplace health and safety committees where there are 10 or more employees. Under this section, employers will be required to permit employees to establish and administer workplace safety committees, which must be composed of employee and employer designees, at least two-thirds of whom are nonsupervisory employees, to (a) raise health and safety concerns, hazards, complaints and violations to the employer, to which the employer must respond; (b) review and provide feedback concerning any safety policy addressed by the law or any provision of the workers’ compensation law; (c) 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; (d) participate in any site visit by any governmental entity responsible for enforcing safety and health standards; (e) review any report filed by the employer related to the health and safety of the workplace; and (f) regularly schedule a meeting during work hours at least once a quarter.

Employers will also be required to permit safety committee designees to attend related trainings without a loss of pay and will be prohibited from retaliation against any employee who participates in the activities or establishment of such a committee.

Section 3 allows for severability.

Section 4 sets the effective date, which takes effect 30 days after it becomes law (except Section 2, which takes effect 180 days after it becomes law).

Employers in New York should immediately start considering how to best comply with this new law. Should you have any questions, BakerHostetler is here to help.

Deciphering The NY Hero Act: A New NY COVID-19 Worker Protection Law