Page 29 - NYS_ESS_07-2021

The New York HERO Act

The “New York HERO Act” is a New York State law that for exercising any right afforded under the prevention plan,
is intended to prevent occupational exposure to airborne reporting violations or exposure concerns, or refusing to
infectious diseases in the workplace. The HERO Act requires work when the employee reasonable believes, in good faith,
the New York State Department of Labor, in consultation with that such work exposes him or her to an unreasonable risk of
the Department of Health, to create model airborne infectious exposure to an airborne infectious disease. The New York State
disease exposure standards for all worksites and, as appropriate, Department of Labor will issue penalties against employers
differentiated by industry. It also requires all private employers for violations of the HERO Act; penalties will include: no less
to establish an airborne infectious disease exposure plan; than $50 per day for failure to adopt a prevention plan, no
employers could either adopt the model standards for the less than $1,000 and no more than $10,000 per day for failure
industry or an alternative plan equal or exceeding those model to abide by the adopted plan. The Department of Labor can
standards. All employees are empowered under the HERO also assess additional fines where an employer has multiple
Act to report violations and airborne infectious disease violations within a year.
exposure concerns to their employers and government entities
without fear of retaliation. Finally, the HERO Act requires Employers with 10 or more employees shall permit employees
all workplaces with 10 or more employees to establish to establish join labor-management workplace safety
workplace safety committees to review policies committees; these committees will be comprised of
and receive complaints about violations. employee and employer designees, with at least
two thirds being non-supervisory employees.
The model standards to be promulgated Each committee is authorized to raise
by the New York State Department of health and safety concerns, hazards,
Labor will consider: the types of risks complains, and violations to the
present at a work site, the presence employer and to review all workplace
of third parties, the extent to which policies, including the adoption of
the model standard is applicable for policies and to provide feedback
different levels of airborne infectious where necessary. Committees will
disease exposure, whether or not a also participate in site visits by
State of Emergency has or has not governmental entities responsible
been declared due to the airborne for enforcement, review reports
infectious disease, distinctions in filed by the employer related to the
policies based on circumstances where health and safety of the workplace, and
a State of Emergency is in place and the schedule quarterly meetings during work
applicable federal standards, and in which hours. Any employee participating in the
languages to publish the standards. While the activities or establishment of a workplace safety
model standards are still pending at the time of this committee will be protected against retaliation.
writing, there are some minimum requirements that will
be included; these include employee health screenings, face Amendments to the HERO Act made changes to some of
coverings, required personal protective equipment for each the definitions in the law to include workers employed by
industry, accessible workplace hand hygiene stations, regular digital applications or platforms in the definition of employee
cleaning and disinfecting, social distancing, complying with but exclude independent contractors employed by the state,
mandatory or precautionary orders of quarantine or isolation, political subdivisions, and public authorities. The amendment’s
proper airflow and exhaust ventilation, designation of employees language clarifies that an airborne infectious disease must
to enforce compliance, verbal review of airborne infectious be designated by the Commissioner of the New York State
disease exposure prevention standard, and compliance with any Department of Health and gives employers a 30-day grace
applicable laws, rules, and regulations. period after industry standards are published to comply.

Employers are required to provide their HERO Act NYSAPLS urges you to continue to monitor the New York
prevention plan to employees, in writing, upon hiring and State Department of Labor website for additional information
upon reopening after a period of closure due to an airborne and updates. Specifically, the Department has designated this
infectious disease; the plan must also be posted in a visible webpage for HERO Act updates: https://dol.ny.gov/ny-hero-act.
and prominent location within the workplace. Employers are The preceding information shall not constitute legal advice.
prohibited from taking retaliatory action against an employee

EMPIRE STATE SURVEYOR / VOL. 57 • NO 4/ 2021 • JULY/AUGUST 27