On May 5, 2021, Governor Cuomo signed into law the New York Health and Essential Rights Act (“HERO Act”), which requires employers to help protect workers from airborne infectious diseases, such as COVID-19. The law is the result of sustained efforts by labor unions and public interest groups for enactment of enforceable health and safety protections for all workers – not just essential workers on the front lines of the pandemic – and to give workers a voice in ensuring their safety on the job.

The HERO Act applies to all private employers in New York State regardless of size.  It requires the state Department of Labor, in consultation with the state Department of Health, to create safety standards regarding airborne infectious diseases in the workplace and to develop a model airborne infectious disease prevention plan. The standards must be tailored to the industry and include protocols on testing, PPE, face coverings, social distancing, hand hygiene, disinfection, and engineering controls. We understand that a timetable for DOL’s creation of the safety standards and model plan is forthcoming. 

Employers will be required to either adopt the model protection plan or implement their own plan that meets or exceeds the state’s standards. If the employer doesn’t adopt the state model, the plan must be negotiated with the union representing its workers. If there isn’t a union, the plan must be developed with “meaningful” worker participation.

Because workers are in the best position to judge whether implemented safety standards are effective in their workplace, the HERO Act requires employers with 10 or more employees to permit employees to create joint labor-management workplace health and safety committees to address issues that arise and evaluate whether the safety protocols are working. Workers must be allowed to participate in any workplace visit by OSHA or other governmental health and safety agency.

The HERO Act protects workers from retaliation or discrimination for exercising their rights under the law and reporting violations of the protection plan or possible exposure to a federal, state or local agency or public official.  An employee is also protected from retaliation for  refusing to work if she reasonably believes in good faith that work conditions expose her, coworkers or the public to unreasonable risk of exposure, provided she, another employee or union notified the employer of the conditions and the employer  failed to correct them.

Employers that fail to enact a prevention plan or abide by an adopted plan are  subject to fines and the DOH or state attorney general may bring an action to enjoin any violation of the law. In signing the law, Governor Cuomo obtained the Legislature’s agreement to make technical amendments to it, including more specific instructions to DOL in developing and implementing workplace standards and with regard to employees’ right to sue employers for violations of the law.