New York Employers Must Implement HERO Act Workplace Safety Plans

Private employers in New York State must promptly activate COVID-19 workplace health and safety protections devised earlier this year under the state’s “HERO Act.”

In instances where a disease is designated by the commissioner of health as a highly contagious communicable disease that presents a serious risk of harm to the public health, employers are required to activate their workplace safety plan. The Empire State’s commissioner of health made that designation for COVID-19 on September 6.

The requirements were signed into law in May under the New York Health and Essential Rights Act (NY HERO Act) and were adopted to prevent occupational exposure to an airborne infectious disease.

Employers have a number of responsibilities now that the designation has been made.

Specific requirements

According to a fact sheet provided by the New York Department of Labor, such a move by the state health officials requires employers to:

• Immediately review and update the worksite’s exposure prevention plan to make sure that it includes current information, guidance, and mandatory requirements issued by local, state, and federal governments related to the infectious agent of concern
• Promptly activate the worksite exposure prevention plan
• Go over the plan verbally with employees
• Provide each employee with a copy of the exposure prevention plan in English or in the language identified as the primary language the employee, if available

In addition, according to a September 6 announcement from Gov. Kathy Hochul’s office, while the designation remains in effect, employers must implement safety measures, including employee health screenings, masking and social distancing requirements, workplace hygiene stations, workplace cleaning protocol, quarantine protocol, and building airflow technology — or adopt the state’s model plan.

Employers must implement safety measures, including employee health screenings, masking and social distancing requirements, workplace hygiene stations, workplace cleaning protocol, quarantine protocol, and building airflow technology — or adopt the state’s model plan. 

Required workplace safety measures

Health screening 

Employers must screen employees for symptoms of infectious disease before they enter the workplace at the beginning of their shift, according to information provided by Lowenstein Sandler attorneys, Julie Levinson Werner and Lauren M. Hollender, on the firm’s blog.

The specifics are not stated in the standard required under the law or the New York Labor Department’s model safety plan, the attorneys noted. Employers are directed to follow guidance from the New York Department of Health and the Centers for Disease Control and Prevention, but the guidance available from the state “no longer remains in effect” and has not been updated to align with some of the CDC’s recent recommendations, they wrote.

Personal protective equipment 

Employers must personal protective equipment that fits the employee at no cost to the employee if required or recommended by State Department of Health or the CDC.

Masking 

Employers are required to provide employees with appropriate face coverings at no cost to employees, and employees are required to wear appropriate face coverings when social distancing cannot be maintained, the attorneys said.

The Act’s standard incorporates CDC mask guidance and requires New York employers to follow that guidance, Werner and Hollender said. “This means all individuals, regardless of vaccination status, must wear a mask indoors in public when social distancing cannot be maintained if the employee works in an area of substantial or high transmission,” they wrote.

CDC tracking data currently ranks community transmission in New York City as “high,” the attorneys said.

Social distancing 

When possible, employers must direct physical distancing that keeps employees at least 6 feet away from others, according to the standard established under the HERO Act.

Workplace hygiene stations 

Employers must provide hand washing facilities with an adequate supply of water, soap, and single-use towels or airdrying machines “to the extent practical and feasible,” Werner and Hollender wrote.

If provision of hand washing facilities is not practical, the employer must provide hand sanitizing facilities and/or supplies, according to the standard established by the state law. The hand sanitizers provided by the employer must be effective against the infectious agent and must contain at least 60% alcohol or “other composition determined to be appropriate” by state’s health department or the CDC for the disease outbreak.

Workplace cleaning protocol

Employers must implement an “appropriate cleaning and disinfection plan that includes the methods of decontamination based on the location, facility type, type of surface to be cleaned, type of material present, and as otherwise directed by the state Department of Health or the CDC,” the attorneys noted.

For activities for which exposure controls, such as health screenings, face coverings, physical distance, hand hygiene, etc. “will not sufficiently protect employees, employers should determine whether the temporary suspension or elimination of risky activities, engineering controls relating to ventilation, or administrative controls (i.e., work rules to prevent exposure) are necessary,” the attorneys said.

Who must comply

The law applies to private employers regardless of size. Public employers, including state subdivisions, are expressly excluded.

The HERO Act does not cover any work site that the employer does not have the ability to control.

If the employer is based outside of New York State but has employees based in NY, the NY employees are covered by the act unless the employee within the state is telecommuting or teleworking from a site at which the employer has no ability to exercise control, such as the employee’s residence.

Compliance date

The designation requires all New York employers to “promptly activate” the safety plan. At press time, the specific start date was not provided.

The designation is currently expected to expire on September 30. “This designation will remain in effect until September 30, 2021, at which point I will review the level of transmission of COVID-19 in New York State and determine whether to continue this designation,” the health commissioner noted in a statement.

Penalties

Employers may be subject to daily penalties of $50 and violations ranging up to $10,000 for failure to follow the safety plan.

No retaliation

The state law provides “strong anti-retaliation protections” that prohibit employers from taking adverse actions against workers for activities protected by the Act, according to the governor’s office. Employers are expressly prohibited from retaliating against employees who exercise their rights under the law.

Posting requirement

Employers must distribute their work safety plan to all employees and post it in a visible and prominent location within each worksite.

Other states

As of June 2021, 14 states — California, Illinois, Kentucky, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Virginia, Washington State — have adopted “comprehensive COVID worker safety protections,” according to the National Employment Law Project.

Employers should also check city ordinances for similar requirements.