A Guide to Employer Compliance Under the New York HERO Act - Paypro

On May 5, 2021, the New York Health and Essential Rights Act (NY HERO Act) was signed into law, mandating new workplace health and safety protections to help protect workers during airborne infectious disease outbreaks. The mandate is designed to ensure employers are taking steps to reduce the risk of exposure and protect their employees from the spread of the disease. Here’s what you need to know about HERO Act compliance.

What is the New York Hero Act?

The HERO Act protects New York employees against exposure in the case of airborne infectious disease outbreaks. It is important to understand the mandate is not just applicable to the current pandemic. The policy applies to all future airborne infectious disease outbreaks. It adds two new sections to New York Labor Law:

1. 218-b, regarding airborne infectious disease prevention plans
2. 27-D, governing workplace safety committees

The HERO act applies to all employers in the state of New York and includes all employees, independent contractors, part-time workers and others.

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Deadline for HERO Act Compliance

Employers were mandated to have model infection disease exposure plans in place no later than August 5, 2021. All employers with worksites in New York must also adopt a model infectious disease exposure plan that meets or exceeds the minimum standards of the act. Employers must distribute the plan to employees within 30 days of establishing their plan. 

After a business closure related to an outbreak, you must distribute the plan within 15 days of reopening. It must also be shared with all new hires or should an employee request to see the plan. The New York State Department of Labor (NYDOL) or New York State Department of Health (NYDOH) can also request to see the plan at any time.

Civil Penalties for Non-compliance

Civil penalties for failure to adopt a plan include fines of at least $50 per day and not less than $1,000. Failure to abide by a plan can be over $10,000, with penalties increasing for repeat violations.

HERO Act Standards

To help employers understand requirements, the NYDOL, in consultation with the NYDOH, released an Airborne Infectious Disease Exposure Prevention Standard. They also prepared industry-specific Model Airborne Infectious Disease Exposure Prevention Plans (the Model Plans). The standards include:

• Employee participation/distribution: If you choose to adopt a plan different from the Model Plan it is important to get employee feedback to ensure you follow the standards that state such plans must be done with “meaningful participation of employees . . . and such plan shall be tailored and specific to the hazards in the specific industry and worksites of the employer.”
• Exposure controls: You must select appropriate exposure controls to meet the needs of your worksite including health screenings, face coverings, physical distancing, hand hygiene facilities, cleaning and disinfection and personal protective equipment.
• Anti-retaliation measures: If you do not follow the standards, you cannot take retaliation measures against employees who exercise their rights, report violations, or refuse to work due to non-compliance fears. However, employees must also report their concerns of violations giving you an opportunity to resolve the issues.
• Plan activation: Once the New York State Commissioner of Health deems a disease poses a serious risk, you must activate the plan.
• Private cause of action: If an employee feels there is “a substantial probability that death or serious physical harm could result to the employee . . .” they can take action against you. However, employees must notify you of what they feel are violations. If you don’t resolve the issues within 30 days, the employee has six months from the date of their notice to bring the claim against you. Should the court find the employee’s claims are unfounded, they could award you costs and attorney’s fees.

These are the basics of the standards. A thorough review of the standards will make sure you are compliant.

Forming Workplace Safety Committees

Effective November 1, 2021, employees can form a joint labor-management workplace safety committee composed of employer and employee designees. The act states at least two-thirds must be chosen by nonsupervisory employees. The committee is in place for the following purpose:

• Raise health and safety concerns you must respond to
• Review health and safety policies
• Attend government workplace site visits
• Review employer-filed reports related to workplace health and safety

You must allow the committee to hold quarterly meetings during working hours for up to two hours. Members are also permitted to attend training on occupational health and safety during work hours of up to four hours to better understand the committee’s function.

HERO Act Compliance Tips

To ensure you are compliant, make sure you take the following steps:

• Ensure your Airborne Infectious Disease Exposure Prevention Plan was in place by August 5, 2021, or do so immediately
• Designate a team to enforce the plan
• Ask employees for feedback to ensure the plan suits your specific workplace
• Include the plan in your employee handbook/policies
• Distribute the plan to employees
• Obtain personal protective equipment ready for employee use
• Make sure exposure controls are in place
• Consider assisting in establishing a joint labor-management safety committee

Following these steps will ensure you are compliant and also provide a safe workplace for your employees.