As employers have been working through post-pandemic office reopening plans, those with employees in New York must be mindful of additional issues and compliance obligations. In May, Governor Cuomo signed into law the New York Health and Essential Rights Act (“HERO Act”), which amended NY Labor Law to codify extensive health and safety directives. This law applies to all private employers with at least one employee at any worksite located in New York, unless already covered by federal OSHA’s emergency temporary standard for COVID-19.
The HERO Act is intended to prevent workplace exposure to airborne diseases, whether from the COVID pandemic or other causes in the future. The law was initially to have taken effect on June 4, but amendments in June extended the effective date. Early confusion regarding whether and how the law’s broad definition of worksite would apply in mobile and remote-work situations was also clarified by amendment. Specifically, as amended, the law will apply only to workplaces within the employer’s control, and generally excludes telecommuting. The NY State Department of Labor (“NYS DOL”), in consultation with the NYS Department of Health, was tasked with creating and posting on its website a model plan and is responsible for enforcement of the law.
Employers should note that, as is clear under the recently-issued standard, the HERO Act does not apply to “any seasonal or endemic infectious agent or disease, such as the seasonal flu, that has not been designated by the Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health.”
Key Compliance Dates
Employers with NY worksites have thirty days (through August 5, 2021) to adopt or create a compliant plan. Employers are permitted to choose either to adopt the applicable model plan provided by the state or to create their own plan that meets minimum standards detailed in the state’s model plan. On July 6, 2021, the state published its airborne infectious disease standard and model exposure plan, along with various model industry-specific plans. Much of the content (especially as regards health screening, face coverings, physical distancing, hand hygiene, cleaning/disinfection, and personal protective equipment) will be familiar to employers who have been coping with COVID-related requirements under executive orders and CDC guidance.
Employers have sixty days (through September 4, 2021) to provide all employees written copies of their plan in English and the employee’s primary language (if a model standard has been published in the employee’s primary language). Thereafter, employers must provide copies to new employees upon hire, or within fifteen days after reopening a worksite following a period of closure.
As the NYS DOL explains in the model plan, the HERO Act defines “employees” (for purposes of the Act’s requirements) to mean “any person providing labor or services for remuneration for a private entity or business within the state, without regard to an individual’s immigration status, and shall include part-time workers, independent contractors, domestic workers, home care and personal care workers, day laborers, farmworkers and other temporary and seasonal workers.” The only workers not included in the HERO Act’s requirements are employees or independent contractors of the State, any political subdivision of the state, a public authority, or any other governmental agency.
The standard and model plan contain anti-retaliation provisions designed to protect employees who exercise their rights under the HERO Act, report violations of the law or concerns about airborne infectious disease exposure, or who refuse to work because they reasonably believe “in good faith, that such work exposes [them] or other workers or the public, to an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent” with the Act or other laws, rules, policies, or orders of any governmental entity.
Employees may report violations either verbally or in writing, including by electronic communications. Employers are required to maintain records (to the extent such records exist) regarding potential risks of exposure for two years after the conclusion of the Commissioner of Health’s designation of a high-risk disease.
Employers with worksites in NY are encouraged to monitor the NYS DOL’s website for additional details and updates. If you have questions about the HERO Act or would like assistance with adopting your airborne infectious disease exposure plan, or with other employment-related matters, please contact please contact Trish Lantzy at [email protected] or 804-683-1737.
A member of our Washington D.C.-based team, Patricia Lantzy is a highly skilled labor and employment attorney with almost 30 years of experience. Trish works with a wide range of clients, from individual executives and small businesses to the Fortune 500, on employment-related issues across the employee lifecycle, including recruiting, hiring, workplace harmony and leave issues, performance and discipline/discharge, corporate reorganizations and reductions in force.
 The HERO Act originally defined “worksite” as “any physical space, including a vehicle, that has been designated as the location where work is performed.”
 The previous definition is now limited by the phrase “over which an employer has the ability to exercise control.”
 The amendments included the following stipulation: “The term [worksite] shall not include a telecommuting or telework site unless the employer has the ability to exercise control of such site.”
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