New York’s New Workplace Airborne Infection Safety Law – Everything Employers Need to Know

Just this past week, New York’s governor signed legislation establishing new requirements for workplace airborne infection safety standards, called the New York Health and Essential Rights Act or HERO Act. Here’s everything employers need to know about their obligations under the new law.

New State Standards for Airborne Infectious Disease Workplace Safety

The bill directs the state commissioner of labor and department of health to create and publish a model airborne infectious disease exposure prevention standard for work sites, differentiated by industry, establishing minimum requirements for employers in the state.

Employers will be required to establish an airborne infectious disease exposure prevention plan either by adopting the model standard relevant to their industry, or by establishing an equivalent plan that exceeds the minimum standard. If an employer chooses to establish its own plan, it must do so in consultation with collective bargaining agreements or, in a non-unionized workforce, with “meaningful participation of employees.”

The State model will include requirements on procedures and methods for:

  • Employee health screenings.
  • Face coverings.
  • Applicable personal protective equipment that employers may need to provide and store properly.
  • Hygiene stations and break times for employees to wash hands.
  • Procedures for cleaning and disinfecting work areas, including touchscreens, doorknobs, surfaces, and vehicles.
  • Social distancing and spacing requirements and markers, capacity limitations, and flexibility options for remote working.
  • Compliance with mandatory or precautionary isolation and quarantine orders.
  • Engineering controls, including air flow and ventilation.
  • Designation of a supervisor to enforce compliance with prevention protocols.

Employer Requirements for Executing the Plan

Employers will need to provide employees with the written airborne infectious disease exposure prevention plan in English and the employee’s primary language (where available), and it will also need to be posted in a visible and prominent location in the worksite and provided in employee handbooks.

The legislation includes anti-retaliation provisions for employees who exercise their rights under the Act, report violations and exposure concerns, or refuse to work where the employee reasonably believes that he/she would be exposed to an airborne disease.

It also includes fines for failure to adopt or abide by the exposure prevention plan and a private right of action permitting employees to bring a civil action for injunctive relief, attorneys fees, and in certain situations, liquidated damages.  Notably, the Act cautions that frivolous claims may result in “sanctions against the attorney or party who brought the action.”

The portion of the law requiring the exposure prevention plan goes into effect on June 4, 2021.

Labor-Management Workplace Safety Committee

Employers with at least ten employees or an annual payroll of over $800,000 and a workers compensation experience modification rating of more than 1.2 will also be required to allow employees to establish a joint labor-management workplace safety committee, under the second section of the bill that goes into effect on November 1, 2021.

The law outlines requirements for the makeup and responsibilities of the committee which includes, amongst other things, that two-thirds of the members must be non-supervisory employees, and it must be co-chaired by both a representative of the employer, and a representative of non-supervisory employees.

The committee will be able to:

  • Raise health and safety concerns, hazards, complaints, and violations to the employer, to which the employer must respond.
  • Review workplace policies.
  • Participate in site visits by government safety and health agencies.
  • Review employer reports related to workplace health and safety.
  • Schedule meetings during work hours at least once a quarter.
  • Send committee members to relevant training, while receiving regular pay.

This section of the legislation also includes anti-retaliation provisions for committee members.

Employers in New York should start reviewing their existing health and safety policies and begin thinking of revisions reflecting the new Act’s requirements. They should also keep an eye out for the new state model plan. If you need help establishing an airborne infectious disease exposure prevention plan or require guidance about what the new law could mean for your workforce, please feel free to reach out to Michael Futterman at (212) 308-0070 or any of the Firm’s Employment Law Group.

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