What Employers Need to Know About the NYS HERO Act

BBB Webinar Series: What Employers Need to Know About the NYS HERO Act

July 26, 2021

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BBB Webinar Series:

What Employers Need to Know About the NYS HERO Act

Joseph S. Brown jsb@hurwitzfine.com

Hurwitz & Fine Team Katherine L. Wood klw@hurwitzfine.com

New York Health and Essential Rights (“HERO”) Act

New York State HERO Act

Effective June 4, 2021

• Some portions of the Act have different effective dates Workplace health and safety law

Overview of HERO Act Requirements •

Workplace Health and Safety Plan ✓

•

Joint Labor-Management Workplace Safety Committee ✓

•

Employers with 10 or more employees

Prohibition on Discrimination and Retaliation ✓

•

All private employers

All private employers

Civil Actions and Administrative Enforcement

Workplace Health & Safety Plans Generally •

Employers must adopt a health and safety plan specific to their relative industry

•

NYS DOL has provided industry specific model policies

•

Employers can adopt their own policy that meets or exceeds the requirements of the law

•

Employers have until August 5, 2021 to adopt their plan ✓

However, plans do not need to become effective until the NYS Commissioner of Health designates an infectious disease as a “high contagious communicable disease” presenting a serious risk of harm to the public.

Workplace Health & Safety Plans must include the following topics: Employee health screenings

Regular cleaning and disinfecting

Face coverings

Required personal protective equipment

Hand hygiene

Social distancing

Compliance with mandatory or precautionary orders of quarantine

Compliance with applicable engineering controls such as proper air flow

Designation of one or more supervisory employees to enforce compliance

Verbal review of health and safety standards

Industry-Specific Model Workplace Health & Safety Plans Released for the Following Industries:

Agriculture

Food Service

Construction

Manufacturing and Industry

Delivery Services

Personal Services

Domestic Workers

Private Education

Emergency Response

Private Transportation

Retail

Does not need to be effective until there is a Commissioner designation

Implementation of Workplace Health & Safety Plans

Adopted plans must be distributed to employees

Adopted plans must be placed in employer’s employee handbook

How does this differ from COVID safety plans that employers were required to implement when NYS began reopening?

•

Applies to airborne diseases including, but not limited to, COVID

•

Policies do not need to be effective until there is a NYS Commissioner designation, but employers must have these policies “ready to go” in the event of such a designation.

Joint LaborManagement Workplace Safety Committee (WSC) •

Section 27-d New York Labor Law

•

Becomes effective Nov. 1, 2021

•

Definition of employer ✓

“any person, entity, business, corporation, partnership, limited liability company, or an association employing at least ten employees”

•

One committee per worksite is required

•

Act authorizes multiple committees representing geographically distinct worksites

Committee Structure and Compensation

•

Nonsupervisory employees must comprise at least 2/3 of these WSC

•

Non-supervisory employees to be chosen by nonsupervisory employees (unless a CBA exists)

•

Covered employers are not permitted to interfere with the selection of employees

•

Co-chaired by both an employer representative and a nonsupervisory employee

•

Compensation: ✓

Up to two hours of paid time for WSC members to attend meetings

✓

Up to four hours of paid time to participate in WSC trainings

Scope of Committee’s Powers The Act authorizes committees to: 1.

Raise health and safety issues to employers

2.

Review occupational health and safety policies

3.

Review policies enacted in the workplace in response to, among other things, laws and executive orders

4.

Participate in government workplace site visits, unless prohibited by law

5.

Review employer-filed reports pertaining to workplace health and safety

6.

Schedule a meeting (for no longer than two hours) during work hours at least quarterly.

How does NY Labor Law Section 27-D affect collective bargaining agreements?

•

Does not diminish the employee rights and remedies available under a CBA

•

New law can be waived within any CBA

Discrimination and Retaliation Prohibited Employers cannot “discriminate, threaten, retaliate against, or take any adverse action” against employees for: •

Exercising their rights under the Act or the employer’s plan;

•

Reporting violations of the Act or the employer’s plan to officials;

•

Reporting or seeking assistance for an airborne exposure concern to an employer or official entity; or

•

Refusing to work when the employee, acting in good faith, believes that dangerous exposure caused by working conditions inconsistent with laws or the required safety plan exists, with certain exceptions

Notice Requirements for Refusal to Work

The employee, another employee, or employee representative notified the employer of the inconsistent working conditions; and

The employer failed to cure the conditions or the employer had or should have had reason to know about the inconsistent working conditions and maintained the inconsistent working conditions.

Civil Actions Injunctive Relief for Violation of Airborne Infection Disease Exposure Plan •

“Creates a substantial probability that death or serious physical harm could result to the employee from a condition which exists, or from one or more practices … which have been adopted or are in use, by the employer at the work site . . . “

•

“unless the employer did not and could not, with the exercise of reasonable diligence, know of the presence of the violation”

Notice and Statute of Limitations for Injunctive Relief •

Employee must provide notice and opportunity for employer to cure within 30 days

•

Exception: an employee alleges with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith

•

Statute of Limitations: 6 months from the date the employee had knowledge of the violation

Jurisdiction of Court •

Restrain such violations and to order all appropriate relief

•

Award costs and reasonable attorneys' fees to the employee

•

Court may award reasonable fees and costs to employer where employee action is deemed “frivolous”

•

Provisions and remedies also apply to anti-discrimination/retaliation

Civil Penalties The Commissioner may assess civil penalties in the amount of: •

$50 per day for an employer’s failure to adopt a plan

•

No less than $1,000 and not more than $10,000 for failing to follow a plan

Next Steps for Employers

•

Employers have until August 5, 2021 to adopt their plan

•

Workplace Safety Committee section of Act takes effect on November 1, 2021

•

Make budgetary allowances for compliance with Act

•

Prepare revisions to employee handbooks

•

Devise plan for dealing with greater employee involvement in health and safety policies.

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