New York employers set to reopen must comply with expansive new worker safety standards

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Employment Alert

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On May 5, 2021, New York Governor Andrew Cuomo signed into law the New York Health and Essential Rights Act (the NY HERO Act), an expansive new law requiring employers to implement enhanced health and safety protections in the workplace in response to the coronavirus disease 2019 (COVID-19) pandemic by June 4, 2021.  The NY HERO Act follows closely on the heels of Governor Cuomo’s recent announcement that, as of May 15, 2021, the limit in occupant capacity for offices throughout New York will increase from 50 percent to 75 percent.  As New York employers reopen their businesses, they are encouraged to begin reviewing – and, where appropriate, developing – workplace health and safety policies and taking other appropriate steps to achieve compliance with the new law and prioritize employee wellbeing.

While Governor Cuomo has promised amendments to the law to ease compliance burdens, employers will nonetheless face substantial obligations under the new law, with a short runway to implement minimum requirements that have yet to be announced.  Accordingly, employers are urged to consider steps they can take now to prepare while following developments related to the new law.

NY HERO Act.  Styled as an amendment to the New York Labor Law, the NY HERO Act generally applies to all private employers in New York State regardless of size and contains several key components:

  • Airborne infectious disease exposure prevention plans

The lynchpin of the NY HERO Act is a new requirement for New York employers to create a written “airborne infectious disease exposure prevention plan” of health and safety standards to protect their employees from workplace exposure to airborne infectious diseases.   

The law first directs the New York Department of Labor (the NYDOL) to publish a “model standard” announcing minimum requirements for preventing airborne infectious disease exposure in the workplace.  The minimum requirements must differentiate between industries and address certain topics, including employee health screenings, face coverings, workplace hygiene stations and social distancing.  The NYDOL must publish its model standard and minimum requirements by June 4, 2021.

Employers must then establish their own airborne infectious disease exposure prevention plan by either adopting the NYDOL’s model standard for their industry, or developing their own “alternative” prevention plan – provided it meets or exceeds the minimum requirements in the NYDOL’s published model standard.  Any alternative prevention plan must be tailored to the employer’s specific industry and worksite and be developed in consultation with employees.  Employers must also post their prevention plan at a “visible and prominent location” in the workplace and provide a written copy to employees upon hire and upon any reopening following an airborne infectious disease-related closure.

  • Employee protection from discrimination and retaliation

Effective June 4, 2021, the law prohibits employers from discriminating or retaliating against employees for reporting violations of the law or of their employer’s prevention plan, reporting concerns over potential airborne infectious disease exposure or refusing to work based on a reasonable good-faith belief that working conditions pose an unreasonable risk of exposure to an airborne infectious disease. 

  • Penalties and court actions

Employers who fail to comply with the NY HERO Act may face potentially significant monetary penalties.  The law authorizes the NYDOL to assess a penalty of at least $50 per day to employers who fail to adopt a prevention plan and a fine of between $1,000 and $10,000 to employers who fail to “abide by” a prevention plan once adopted.

The NY HERO Act additionally arms employees with a private right of action against employers.  Employers found to have violated the law may be subject to injunctive relief, payment of the plaintiff’s costs and attorneys’ fees, and liquidated damages up to $20,000. 

Like the law’s anti-discrimination and anti-retaliation protections, these provisions take effect June 4, 2021.

  • Workplace safety committees

The NY HERO Act additionally requires certain New York employers to permit their employees to establish joint employer-employee “workplace safety committees.”  The committees must be composed primarily of “non-supervisory employees” and be permitted to, among other things, raise healthy and safety concerns to the employer, review certain workplace policies (such as workplace policies required by the applicable “health or safety law”), participate in site visits from a government entity and attend trainings relating to workplace health and safety standards.  The law also requires that “non-supervisory employees” – not employers – select the employee committee members and strictly forbids employers from interfering with their selection process or retaliating against employees for participating in the committee process.  In addition, where there is a collective bargaining agreement already in place, the employee representative “shall be responsible” for the selection of employee committee members. 

The NY HERO Act’s provisions regarding workplace safety committees take effect November 1, 2021 and, unlike the other provisions of the law, apply only to private New York employers with at least 10 employees.

  • Promised amendments

As currently enacted, the NY HERO Act can be read to impose a handful of new, potentially substantial compliance burdens on employers.  However, relief may be on the way.  In signing the NY HERO Act into law, Governor Cuomo simultaneously announced that he had reached an agreement with state legislators to amend the law to give employers more specific instructions in developing and implementing the workplace standards, permitting employers the ability to “cure” violations and limiting employees’ private right of action to “circumstances where employers are acting in bad faith and failing to cure deficiencies” – changes that could alleviate some of the burdens imposed on employers by the new law.   These amendments have not been enacted into law, however, and no bill to formally amend the NY HERO Act has yet been introduced by state legislators.

Increased office capacity.  The NY HERO Act is just one of several recent legal developments New York employers must be mindful of as they prepare to safely reopen.  As of May 15, 2021, the permissible office capacity for businesses across the State of New York will increase from 50 percent to 75 percent of the office’s maximum occupancy.  And, as of May 19, 2021, many New York businesses will no longer be limited by a fixed percentage of their maximum occupancy at all.

Governor Cuomo recently announced that New York will adopt the CDC’s new guidance on mask use and social distancing for fully vaccinated individuals.  Businesses that congregate patrons and operate above the state’s social gathering limit (eg, event venues, sports competitions, performing arts and entertainment, catering halls and conventions) may eliminate the 6 feet of required social distancing, and therefore increase capacity, only if all patrons within the establishment – or a separate designated part of the establishment – present proof of full vaccination status (eg, paper form, digital application or the state's Excelsior Pass).

On the other hand, offices and other businesses that do not congregate patrons and which operate below the state’s social gathering limit that choose to implement the CDC’s new guidance have the option of either requiring proof of full vaccination status or relying upon self-reporting of vaccination status (ie, the “honor system”). For areas where vaccination status of individuals is unknown and for patrons who do not present proof of full vaccination status, the required social distance of 6 feet still applies until more New Yorkers are fully vaccinated. This change will apply across all commercial settings (except those exempt settings outlined by the CDC), including retail, food services, gyms and fitness centers, amusement and family entertainment, hair salons, barber shops and other personal care services, among others.

Significantly, the CDC and New York State’s guidance does not supersede any local requirements. Accordingly, employers are encouraged to continue to review local orders, regulations and guidance related to COVID-19.

Given the fast-approaching changes in office capacity coupled with changes to CDC guidance, and the potentially significant new requirements under the NY HERO Act, prudent New York employers will carefully review relevant policies and procedures, evaluate return-to-work and similar workplace guidelines, provide training to supervisory and managerial employees, and consider other appropriate steps as needed to reopen in a timely – and safe – manner while complying with the new law.

For further information regarding key issues and considerations for US employers as workforces begin to return to the office, please review our previous Employment Alert.

If you have any questions regarding the NY HERO Act or other legal issues concerning COVID-19-related restrictions for employers, please contact any member of the DLA Piper Employment group or your DLA Piper relationship attorney, or email us at CoronavirusEmployment@dlapiper.com.