The New York State HERO Act, Employee Rights, and You

The New York Health and Essential Rights Act (or NY HERO Act as it is colloquially known) has finally been signed into law after a time-consuming series of revisions. The act aims to improve the legal right to a safe workplace, where previously infectious diseases fell through the legal cracks. It is also meant to help stem the spread of diseases like COVID-19, and give employees a powerful voice in the safety protocol at their worksites. 

The law is the first of its kind in The United States, and it’s a rather revolutionary and widespread expansion of worker rights in regard to disease safety. Based largely on experiences with the COVID-19 pandemic, lawmakers have stated that the act will fix a system that was broken long before the outbreak. 

NY State Senator Michael Ginaris (D-Queens), one of the bill’s sponsors, elaborated: “Too many workers have already sacrificed their health for our community’s benefit. The New York HERO Act honors their efforts by giving workers the tools to protect themselves while on the job.”

it is backed by Union and Labor Leaders. And: 

The HERO act will take effect June 4, 2021. However, because The Department of Labor will still have to draft a set of standards, it is unclear when official requirements will be firmly in place. Here’s what we know so far about the future of the act. 

Establishing an Airborne Infectious Disease Standard and Safety Plan

The hallmark action of the HERO Act orders businesses to develop and adhere to a new Airborne Infectious Disease Safety Plan. This safety plan must be printed in all business workplaces, in both English and Spanish. There will be requirements for postings in other languages based on native-tongue demographics at each individual worksite. 

While it will be the employer’s responsibility to develop their own safety plan, The Department of Labor and the Department of Health will issue mandatory guidelines and model safety plans (similar to those issued as part of the 2020 Reopening New York Plan) to establish minimum acceptable standards. Because not one plan can fit all businesses, these guidelines will be developed with specific industries in mind in conjunction with a workforce committee from these industries. 

Some of the specific regulations that will be covered in the safety plan involve: 

• Face Mask Requirements 
• PPE Requirements 
• Social Distancing Requirements 
• On-Site Testing Requirements 
• Accessible Hygiene Supplies Required (Such as Hand Sanitizer)
• Cleaning and Disinfecting of Shared Equipment Required 
• Compliance with Mandatory or Precautionary Orders of Isolation 
• Compliance With Environmental Standards, Such as Airflow 
• Required Designated Safety Plan Supervisors 
• Verbal Review of Safety Standards, Employer Policies, and Employee Rights.  

Establish Employee-Driven Safety Committees

During and after the development of a Safety Plan, any employer of more than 10 employees must allow non-supervisory employees to form a “Safety Committee.” The members of the committee must be chosen by the non-supervisory employees themselves. This committee will be responsible for a number of things: 

•  Submit health and safety concerns to the employer (and the employer is then required to respond).
• Review the employer’s health and safety policy.
• Review the adoption of any policy in response to any health and safety law. 
• Participate in any worksite visitations by government and safety officials. 
• Review any health and safety related report filed by the employer. 
• Attend quarterly meetings during working hours. 

Anti-Retaliation Protections 

Since the beginning of the pandemic, a number of stories have circulated about businesses firing employees for raising concerns about COVID-19 safety measures in the workplace. The HERO Act will make that a thing of the past.

The law includes a number of anti-retaliation provisions, which make it a violation of state law to discriminate against, threaten, retaliate toward, or take any other adverse action against employees who: 

• Report violations of the exposure prevention plan
• Report exposure concern to employers, local, state, or government officials. 
• Refuses to work where such employees reasonably believe, in good faith, that such work exposes him or her or other workers, or the public, to an unreasonable risk of exposure to an airborne disease. 

Charge Fines and Legal Consequences for Non Compliant Employers 

The HERO Act also establishes a series of regulatory penalties for businesses that do not comply with the law. The NYSDOL may fine a business $50 per day for failure to adopt a safety plan, and anywhere between $1,000 and $10,000 for failure to abide by the safety standards. 

Even further, employees are allowed to sue employers who put them at risk of exposure by violating safety standards. In these cases, employees are liable to receive: 

• Reimbursement of Court Costs 
• Reimbursement of Attorney Fees 
• Liquidated Damages of No More Than $20,000

Not Just for COVID-19

While the law was clearly designed based on the legal shortcomings and safety protection failures highlighted by the COVID-19 era, it was also designed to be useful long after the pandemic has ended. It is meant to protect against all airborne infectious diseases. 

To qualify as a disease referenced in the law, the condition must meet all of the following criteria:

• Any infectious viral, bacterial, or fungal disease transmissible through the air in the form of aerosol particles or droplets
• Designated a highly contagious, communicable disease by the commissioner of health
• Presents a serious risk of harm to public health.

Diseases that meet this criterion include: 

• Other forms of SARS
• Influenza 
• TB
• Anthrax
• Strep Throat
• Measles 
• Diphtheria 
• Viral Hemorrhagic Fevers
• Pertussis (Whooping Cough)
• Meningitis

Who Is Covered Under the Law?

The NY HERO Act aims to comprehensively protect all classes of worker, regardless of unusual working conditions (such as seasonal positions or independent contractor positions) or social/legal standing (such as immigration status). As such, it includes provisions to ensure that none of these workers fall through the cracks and are deprived of the rights afforded by the NY HERO Act. 

More specifically, the law’s language defines “employees” in this case as “any person providing labor or services for remuneration for a private entity or business within the state.” This includes but is not limited to: 

• Part-Time Employees 
• Independent Contractors and Subcontractors
• Workers Employed through Staffing Agencies
• Domestic Workers
• Home Care and Personal Care Workers
• Day Laborers 
• Farmworkers 
• Other Temporary and Seasonal Workers 
• Individuals Delivering Goods to a Work Site (Whether or Not They Would Otherwise Qualify as an Employee) 

The only workers not considered “employees” for the sake of this law are those employed by the state or one of its political subdivisions, public authorities, or government agencies. 

Similarly, the law covers all businesses, corporations, partnerships, LLCs, or associations that conduct hiring or payment for the labor of any individual in any occupation, industry, trade, business, or service. Once again, the only exemptions are the state, government agencies, and political subdivisions of the state. 

Compliance Is Easier Than You Think 

Complete Payroll offers custom and fully compliant policy notices, training, and advice. Complete Payroll is a human resource organization that understands humans are your most important resource. Whether you’re looking to better manage payroll, timekeeping, or simply need the latest HR software -- Complete Payroll has what you need.