New York’s HERO Act About to Hit the Streets With New Safety and Labor Obligations for Employers

HERO directs the NYDOL to implement industry-specific model workplace safety standards for airborne infectious diseases, covering subjects touching on health screenings, face masks, personal protective equipment, hand hygiene, cleaning and disinfecting of equipment and common areas, social distancing, and other matters no later than June 4. The model standards have yet to be published, but once they are, and after the effective date, employers will then be expected to implement either the standards applicable to their industry or similar standards meeting the model standard’s minimum criteria (which must be developed under an agreement with a collective bargaining representative or else with “meaningful employee participation”). Any plan implemented by an employer will have to be (1) distributed to the entire workforce on the effective date (including to any part-time, temporary or leased employees and to independent contractors included) and upon reopening after a closure due to an airborne infectious disease, (2) provided to new employees on their hiring dates, (3) included in the employer’s handbook (if the employer has one), and (4) posted in a prominent location in the workplace. However, employers will not be required to implement or distribute any new standards at least until the NYDOL publishes the model standards.

Employers should keep an eye out for the new standards, and implement them once they’re published, as the commissioner of the NYDOL is authorized to bring an enforcement action for civil penalties against employers for noncompliance. Individuals in employers’ workforces also have the right to bring private actions for injunctive relief, liquidated damages, and attorneys’ fees under certain circumstances, and they will separately benefit from anti-retaliation provisions.

Although not set to take effect until November 1, 2021, HERO will also place a separate obligation regarding workplace safety councils on employers with at least ten employees. After November, employees will have a standalone right to form committees — composed of both supervisory and non-supervisory employees — which will be entitled to raise health and safety concerns, review safety or workers’ compensation policies, participate in government site visits for health and safety matters, review employer health and safety reports, and attend certain meetings and trainings. Employees who participate in the activities or creation of these committees will also benefit from statutory anti-retaliation provisions.