The HERO Act

Tuesday, June 29, 2021

On May 5, 2021, Governor Andrew Cuomo signed the Health and Essential Rights Act (the “HERO Act”) into law, which, in light of the COVID-19 pandemic, mandates new workplace health and safety standards to protect New York workers from exposure to all airborne infectious diseases by reducing workplace transmission and community spread.  In a memorandum issued with the signing, Governor Cuomo announced that he had secured an agreement with the Legislature for amendments to the HERO Act to address certain ambiguities and technicalities related to the HERO Act.  On June 7, the New York State Assembly passed amendments to the Hero Act, and, on June 11, 2021, the Governor signed these amendments into law. 

The HERO Act mandates that the New York State Department of Labor (the “DOL”), in consultation with the New York State Department of Health (the “DOH”), create and publish model workplace standards relating to the prevention of all airborne infectious diseases.  The DOL will create and publish specific workplace standards for particular industries, as well as a model workplace prevention standard applicable to all other worksites.  Among other things, the model workplace prevention standard will require (1) employers to provide employee health screenings; (2) employers to provide face coverings and other personal protective equipment; (3) employers to regularly clean and disinfect shared equipment and frequently touched surfaces, such as workstations, touchscreens, and doorknobs; and (4) employers to install proper air flow ventilations.  The DOL must publish its specific workplace standards for particular industries, as well as its model workplace prevention standard applicable to all other worksites by July 4, 2021.    

Within thirty (30) days of the DOL publishing its model standards, employers of all sizes must then establish their own airborne infectious disease exposure prevention plan by either (1) adopting the model standard relevant to its industry, or (2) establishing an alternative plan that equals or exceeds the minimum standards provided by the model standard.

The HERO Act also mandates that employers with ten (10) or more employees permit these employees to establish a workplace safety committee.  Among other things, the HERO Act authorizes workplace safety committees to (1) raise health and safety concerns to the employer; (2) review and provide feedback on the employer’s workplace policies put in place under the HERO Act; and (3) participate in site visits by governmental entities responsible for enforcing safety and health standards.  This provision relating to the creation of workplace safety committee takes effect on November 1, 2021.   

Additionally, the HERO Act includes an anti-retaliation provision, prohibiting an employer from taking adverse action against an employee who exercises his or her rights under the HERO Act, as well as a civil penalties provision.  Notably, the civil penalties provision authorizes an employee to bring an action against his or her employer based on the employer’s noncompliance with the HERO Act.  Nevertheless, before bringing suit, the employee must (1) provide the employer with notice of the alleged violation; and (2) wait at least thirty (30) days after notice (except where the employee alleges with particularity that the employer is acting in bad faith in failing to cure the violation). 

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