May 20, 2021

New York Enacts Novel HERO Act to Protect Employees Returning to Work

Holland & Knight Alert
Loren Lee Forrest Jr. | Dana E. Feinstein

New York, a state among the hardest hit by the COVID-19 pandemic, has now taken groundbreaking steps to protect its workers and maintain uniform safety standards statewide. On May 5, 2021, New York Gov. Andrew Cuomo signed the New York Health and Essential Rights Act (HERO Act) into law.

Details of the HERO Act

Under the HERO Act, effective June 4, 2021, the New York State Department of Labor will be tasked with creating industry-specific model airborne disease exposure prevention standards, which must address pandemic-related safety concerns. Such standards may require safety measures such as health screenings, social distancing and enforcement of isolation and quarantine orders, face coverings and other personal protective equipment (PPE), break times for handwashing, disinfection of high-touch surfaces and compliance with engineering controls to maintain proper air flow and exhaust ventilation. The HERO Act also requires the creation of joint employee-employer workplace safety committees in order to ensure widespread buy-in to safety regulations. Designated supervisors will be tasked with ensuring compliance with safety standards in their particular workplaces.

After finalization of New York's industry-specific safety standards, all private employers will be required to adhere to compliant plans by Nov. 1, 2021. Each employer will have the option of 1) adopting the Department of Labor's model safety standard or 2) creating its own safety standard that is at least as protective as the model standard. Once an employer has selected and implemented its safety plan, it must disseminate the plan to its employees in English and each employee's stated primary language, both upon hiring and upon the effective date of the act. Employers must also post the safety standard in a visible and prominent location in the worksite and include it in their handbooks. Additionally, employers with more than 10 employees must permit the creation of joint management and employee workplace safety committees that will review health and safety issues, plans and policies; participate in government site visits; and otherwise evaluate and monitor workplace safety.

Employers who do not comply with the HERO Act may face civil penalties of up to $10,000 and even potential civil action from the state labor commissioner. The HERO Act also creates a private right of action for employees to obtain injunctive relief, attorney's fees and liquidated damages of up to $20,000 for safety violations. Employers challenged by an employee under the HERO Act may present an affirmative defense that they had a "good faith basis to believe that the established health and safety measures were in compliance with the applicable airborne infectious disease standard."

Conclusion and Considerations

For questions about how the New York HERO Act applies to your organization, please contact the authors or another member of Holland & Knight's Labor, Employment and Benefits Group. Holland & Knight attorneys have extensive experience advising organizations in policy determination and implementation.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the authors of this alert for timely advice.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.

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