[co-author: Heather McAdams]*

On April 21, 2021, both houses of the New York Legislature announced passage of the NY Hero Act, which will require employers to implement extensive new workplace health and safety protections in response to the COVID-19 pandemic. Governor Cuomo is expected to sign the Act into law in the coming weeks.

The NY Hero Act will go into effect 30 days after the Governor signs it into law. When it does, all New York employers, regardless of size, will need to take action to comply with the new obligations that this law will impose.

Employers must adopt a prevention plan

The NY Hero Act directs the New York Department of Labor (DOL) to establish minimum health and safety requirements for preventing the spread of airborne infectious diseases in the workplace within 30 days of the Governor’s signature. These standards will vary based on industry, but must address employee health screenings, face coverings, personal protective equipment (PPE), social distancing, and cleaning and disinfecting protocols.

New York employers must then either (1) adopt the relevant DOL standard, or (2) establish their own disease prevention plan that meets or exceeds the requirements of the standard. Employers will also be required to post their plan in the workplace and distribute it to their employees upon hire and/or after reopening following a closure due to an airborne infectious disease.

Employers must allow creation of workplace safety committees

Employers must also permit employees to form a joint labor-management workplace safety committee with designees from the employees and the employer. The committee would review and monitor the employer’s workplace safety plan, raise workplace health and safety concerns, participate in government site visits relating to workplace health and safety standards, and attend committee meetings and trainings related to workplace health and safety standards. The workplace safety committee provisions of the NY Hero Act will take effect 180 days after the bill is signed into law.

Employers must refrain from retaliating against employees

The NY Hero Act also contains an anti-retaliation provision whereby employers may not retaliate against employees for reporting violations of the employer’s workplace safety plan, for reporting concerns of exposure to disease, or for refusing to work if an employee reasonably believes in good faith that the workplace exposes them to an unreasonable risk of exposure.

Failure to adopt a workplace health and safety plan will subject employers to a penalty of at least US$50 per day until such a plan is implemented. Employers who fail to comply with their adopted plans can be subject to a fine ranging from US$1,000 to US$10,000. The law also provides employees with the right to bring a lawsuit against an employer for failing to comply with the law. Courts may order the employer to adjust their conduct and award the plaintiff attorneys’ fees and costs and liquidated damages up to US$20,000 unless the employer demonstrates good faith attempts to comply with the standard.

The NY Hero Act does not specify just how much time New York employers would have to implement a workplace safety plan after the DOL announces the relevant standards. However, employers who intend to resume or increase in-office operations should be prepared to implement a compliant plan shortly after the NY DOL promulgates a model policy.

*Law Clerk

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