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Governor Cuomo Signs The HERO Act Into Law: What Does It Mean For Employers?

While NYS and the CDC continue to slowly ease COVID-19 restrictions and guidelines, Governor Cuomo last week signed new legislation into law, signaling that NYS employers cannot yet get back to the status quo. With an aim to protect employees by establishing standards for airborne infectious disease (read, COVID-19) safety, the New York Health and Essential Rights Act (the “HERO Act”) imposes significant requirements on employers, including:

1. Adopting a Compliant Airborne Infectious Disease Exposure Prevention Plan. All NYS employers must adopt an airborne infectious disease exposure prevention plan. The Act specifies that, at a minimum, an employer’s plan must address the following topics:

a. Employee health screenings;

b. Face coverings;

c. PPE;

d. Hand hygiene;

e. Cleaning/disinfection of shared equipment/surfaces;

f. Social distancing;

g. Quarantine/isolation order compliance; and

h. Engineering controls (air circulation, etc.).

The Act also requires employers to designate an employee to be responsible for compliance with the plan and includes specific requirements for its dissemination and communication.

2. Establishing a Workplace Safety Committee. NYS employers with 10 or more employees must permit employees to establish a workplace health and safety committee. (We find the use of “permit” here to be interesting, but will have to await further guidance to ascertain its full meaning.)

At least ⅔ of the committee must be non-supervisory employees and the committee must be permitted to meet during working hours at least once per quarter. Further, the employer must authorize the committee to perform a number of health/safety-related functions, including: a. Raising health and safety concerns to the employer; b. Reviewing and providing feedback on any workplace policy relating to workplace safety; c. Participating in any worksite visit by a governmental entity responsible for safety standards; and d. Reviewing any report filed by the employer related to health/safety.

Pro tip: Employers should tread warily when establishing these workplace safety committees (or any employee committee, for that matter). The NLRB has held certain employee committees to be unlawful labor organizations, so ensure you’re working with counsel to avoid any potential pitfalls.

Effective Date

Employers must develop and implement a compliant airborne infectious disease exposure prevention plan by June 4, 2021 and must allow a compliant workplace safety committee beginning November 1, 2021. However, Governor Cuomo conditioned his signing the Act into law on a requirement that the legislature first give NYS DOL more specific instructions regarding workplace health and safety, which could push effective dates further out.

Next Steps

The HERO Act imposes significant new obligations on NYS employers and organizations should start taking steps now to prepare for compliance. While we do anticipate both the legislature’s development of its additional guidance and NYS DOL’s preparation of its model plans to take some time, in the meantime, employers should review their other policies to ensure compliance with the Act’s requirements and ensure they’re aware of the requirements and limitations surrounding the implementation of the workplace safety committee. If you have any questions, please do not hesitate to reach out to a member of the Dowling Law team.

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