What Employers Need to Know About the HERO Act

New York Law Sets Workplace Health Standards as Part of Pandemic Response

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On May 5, 2021 Governor Andrew Cuomo signed legislation known as the HERO Act into law. The law is intended to create workplace safety standards to help slow the spread of COVID-19 and other possible airborne infectious diseases. Employers will need to adopt policies and practices to comply with the law, including updating their employee handbooks.

 What’s in the law? 

All private employers must develop a plan to mitigate airborne diseases for each worksite regardless of that employer’s size or revenue. The protocols to be addressed in the policy include but are not limited to:

  • Employee health screenings;
  • Masking and other use of personal protective equipment (PPE);
  • Social distancing;
  • Cleaning and disinfecting standards;
  • Engineering controls (for worksite airflow and exhaust);
  • And other industry-specific requirements to be addressed soon.

In addition to these protocols, there are robust anti-retaliation provisions in the law.

Over the last year, almost all employers have made changes to their practices to conform to the various executive orders and other guidance on workplace safety in response to COVID-19. The hope is these protocols will not be overly burdensome for employers.

The primary concern for employers is the provision that allows an employee to refuse to work if they, in good faith, believe their employer is not following the prescribed policy and practices. Before they can refuse to work, an employee must have notified the employer of their concern or the employer has known (or should have known) about the violation. An employer may not retaliate against an employee who reports violations or refuses to work under these circumstances.

The employer must notify all employees and new hires of the policy, post the notice prominently in the workplace, include the policy in their employee handbook, and make the policy available to all employees requesting it.

Enforcement and penalties

There are significant penalties that the state could impose on any employer that doesn’t adopt or follow an airborne disease safety policy. Penalties include:

  • $50 per day for each day the employer does not have a policy in place;
  • $1,000 - $10,000 for failing to abide by the policy;
  • Up to $20,000 plus attorney’s fees and costs to employees seeking injunctive relief*

What should employers be doing?

All private sector employers should be prepared to adopt HERO Act policies and institute any changes needed to comply. New York is still developing model policy language, though HR One’s senior consulting team has also been writing policy language to comply with the law. We will also be monitoring the Department of Labor for specific industry standards that may apply.

Whether you have a current handbook, a handbook that has not been updated for several years, or no employee handbook at all, HR One can help develop customized and current policies for your organization.

UPDATE

In a recently amended version signed by the Governor, the Department of Labor now has 60 days instead of 30 to develop model policy language pushing the original June 4 date to July 4. Employers must adopt their own policies or use the state's model policy by August 5, and introduce the policies to employees by September 4.


*The employer may escape this liability if they demonstrate a good faith basis that their established practices complied with the applicable requirements.