‘Puter’s been bitching on Twitter for a few days about the New York Legislature passing and Gov. Cuomo signing into law the so-called HERO Act. The act is yet another expensive, expansive state government intrusion into the workplace. Worst of all, this law is a Trojan horse permitting employees, on their own and without a vote, to form a quasi-union to micromanage employers’ response to “airborne infectious diseases.”
How bad is the HERO Act? Behold, ‘Puter’s third-party human resources provider did a handy-dandy synopsis of the law’s lowlights.
If New York were purposely trying to destroy every business in the state, would its actions look any different?
Client Update – NY State HERO Act
May 12, 2021
HERO Act Overview
Gov. Cuomo signed into law the NY Health and Essential Rights (HERO) Act on May 4, 2021. This legislation requires employers to develop and adopt an airborne infectious disease exposure prevention plan and prohibits discrimination or retaliation against anyone who brings forth a complaint about conditions which could expose employees to infectious airborne diseases in the workplace. Employers may either adopt their own plan or use the model the state Department of Labor has been charged with developing. Plans must be industry specific. It may be advisable to wait to adopt the DOL/DOH model plan for your company’s industry, as any alternative plan must be developed in conjunction with employee input, and be specific to hazards in the industry and at worksites of the employer.
The original timeline for compliance with adopting a safety plan was 30 days after the effective date which would have been June 4th. However, on May 5th Gov. Cuomo secured an agreement with the legislature to make technical changes to the bill, including giving the DOL and employers more specific instructions in development and implementation of workplace standards and providing a clear timeline. This indicates effective dates could be pushed out further, especially in light of the clarification that employers will not need to adopt a plan until the model plans are developed and released.
What must the Plans Include?
Plans must include at a minimum the following:
- Employee health screenings
- Face coverings
- Required personal protective equipment (PPE)
- Accessible workplace hand hygiene stations
- Adequate breaks for workers to use hand hygiene stations as needed
- Regular cleaning and disinfecting of shared equipment and frequently touched surfaces
- Effective social distancing for employees and customers, including sign postage; limiting capacity; delivering services remotely or curbside; flexible meeting and travel options; and staggered shifts
- Compliance with mandatory or precautionary orders of isolation or quarantine
- Compliance with applicable engineering controls such as proper air flow and exhaust ventilation
- Designation of one or more supervisory employees to enforce compliance with the prevention plan
- Compliance with any applicable laws, rules, regulations, standards, or guidance on notification to employees and relevant local agencies of potential exposure
- Verbal review of infectious disease standards, employer policies, and employee rights
- An anti-retaliation provision
Required Notices and Postings
Plans must be posted in a conspicuous area in the workplace, along with being published in an employment manual, if a company has one. It must be provided to all employees at the time of the plan effective date, and to new employees at the time of their hire. It must also be presented to employees upon return from any business closure due to an airborne infectious period.
No discrimination or retaliation
It is unlawful to discriminate, threaten, retaliate against, or take adverse action against any employee for:
- Exercising rights under the prevention plan
- Reporting violations to any government agency
- Reporting concerns or seeking assistance from their employer or a government agency
- Refusing to work when the employee, acting in good faith, believes that dangerous exposure caused by working conditions inconsistent with laws or the required safety plan exists, with certain exceptions: notably, that the employer must first be notified about the purported issue and be given a chance to cure it, unless the employer had or should have had reason to know about it already.
The HERO Act creates a unique private right of action employees may take to directly sue their employer for violations that create a substantial probability that death or serious harm could result from a condition which exists, or from one or more employer practices, methods, or processes, unless the employer did not or could not have known about it “with the exercise of reasonable diligence.” This right to bring legal action against an employer was allowed during COVID under whistleblower protections. However, any action, defense or claim found to be completely without merit or is meant to harass or maliciously injure could result in sanctions against attorneys or parties who make such claims.
The act also defines and sets fines for noncompliance after a DOL investigation. Failure to put a prevention plan in place could result in fines of $50.00 per day. Failure to abide by the prevention plan could result in penalties ranging from $1,000 to $10,000. Repeat offenders will risk even higher fines.
Joint Labor-Management Safety Committees
The second part of the Act becomes effective November 1, 2021. It applies to employers that employ at least 10 employees or have an annual payroll of over $800,000 and a “workers’ compensation experience modification rating of more than 1.2.” These employers must permit employees to establish and administer a joint labor-management workplace safety committee, comprised of at least two-thirds non-supervisory employees who are chosen by non-supervisory employees. Where a CBA exists, the collective bargaining representative will choose members of the committee. Employers are not permitted to interfere with the selection of employees who serve on this committee. Employers are not permitted to retaliate against employees involved in safety committees.
The Act authorizes committees to:
- Raise health and safety issues to employers
- Review and comment on health and safety policies
- Review policies enacted in the workplace in response to laws and executive orders
- Participate in government workplace site visits
- Review employer-filed reports pertaining to workplace health and safety; and
- Schedule and meet quarterly during working hours.
Consult with your [third-party human resources provider] to review your current COVID Health and Safety plan, which should cover the minimum requirements of the HERO Act airborne infectious disease exposure prevention plan until the state publishes their model plans. It will be important to continue the workplace safety measures, including daily screenings, put in place when COVID first presented itself in our workplaces, given that these measures will be required under the HERO Act.
Always right, unless he isn’t, the infallible Ghettoputer F. X. Gormogons claims to be an in-law of the Volgi, although no one really believes this.
’Puter carefully follows economic and financial trends, legal affairs, and serves as the Gormogons’ financial and legal advisor. He successfully defended us against a lawsuit from a liquor distributor worth hundreds of thousands of dollars in unpaid deliveries of bootleg shandies.
The Geep has an IQ so high it is untestable and attempts to measure it have resulted in dangerously unstable results as well as injuries to researchers. Coincidentally, he publishes intelligence tests as a side gig.
His sarcasm is so highly developed it borders on the psychic, and he is often able to insult a person even before meeting them. ’Puter enjoys hunting small game with 000 slugs and punt guns, correcting homilies in real time at Mass, and undermining unions. ’Puter likes to wear a hockey mask and carry an axe into public campgrounds, where he bursts into people’s tents and screams. As you might expect, he has been shot several times but remains completely undeterred.
He assures us that his obsessive fawning over news stories involving women teachers sleeping with young students is not Freudian in any way, although he admits something similar once happened to him. Uniquely, ’Puter is unable to speak, read, or write Russian, but he is able to sing it fluently.
Geep joined the order in the mid-1980s. He arrived at the Castle door with dozens of steamer trunks and an inarticulate hissing creature of astonishingly low intelligence he calls “Sleestak.” Ghettoputer appears to make his wishes known to Sleestak, although no one is sure whether this is the result of complex sign language, expert body posture reading, or simply beating Sleestak with a rubber mallet.
‘Puter suggests the Czar suck it.