New York: HERO Act Implements New Employer Safety Requirements

The New York Health and Essential Rights Act (HERO Act) adds new occupational safety and health rules that set minimum safety standards for the private sector. The Act covers all workers, including independent contractors. The state Commissioner of Labor together with the State Department of Health must prepare model airborne infectious disease exposure prevention standards. As of June 4, 2021, employers may either adopt the model standards or create their own safety plan that meets or exceeds the minimum standards established by the Labor Commissioner. Employers must distribute the plan to employees in English and the employee’s primary language if other than English, post the plan in the workplace, and incorporate it into the employee handbook.

Employers are prohibited from discriminating or retaliating against employees for exercising their rights under the Act or the employer’s plan; reporting violations to officials; reporting an airborne exposure concern to an employer or official entity; or refusing to work based on a good faith belief that working conditions cause dangerous exposure, with limited exception. The Labor Commissioner may assess civil penalties of $50 per day for failure to adopt a plan and $1,000 to $10,000 for failure to follow a plan.  Employees may also seek injunctive relief and obtain attorneys’ fees and liquidated damages up to $20,000 in some instances.

Effective 180 days after May 5, 2021, employers with 10 or more employees or an annual payroll of over $800,000 and a “workers’ compensation experience modification rating of more than 1.2” must allow employees to create a joint labor-management workplace safety committee that raises health and safety issues to employers; reviews and comments on health and safety policies; reviews policies implemented for compliance with laws and executive orders; participates in government workplace site visits; reviews employer-filed workplace health and safety reports; and schedules and meets quarterly during working hours. Employers are prohibited from retaliating against employees on safety committees.

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