Under the NY HERO Act, employers must either:
In addition to the model plan, the NYDOL created several industry-specific prevention plans for the following industries: agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail, which can be found here.
The model plan sets forth the minimum requirements employers must provide to prevent exposure to airborne infectious diseases in the workplace and establishes requirements for:
Employers had until 4 September 2021 to distribute the prevention plan to employees. The prevention plan must also be posted in a visible and prominent place within the worksite, included in the employee handbook, and provided to new employees upon hire.
Notably, although employers are required to adopt and distribute a prevention plan, the plan only goes into effect ‘when an airborne infectious disease is designated by the New York State Commissioner of Health [(‘Commissioner’)] as a highly contagious communicable disease that presents a serious risk of harm to the public health.’ As of the date of this alert, the Commissioner has made no such designation, and thus, prevention plans are not required to be in effect.
Employers are prohibited from discriminating or retaliating against any employee for exercising rights granted by the NY HERO Act. Employers cannot take any adverse employment action against any employee for reporting violations of the law or prevention plan; reporting concerns about exposure to airborne infectious diseases; or refusing to work under limited circumstances where the employee reasonably believes in good faith that such work exposes the employee or others to an unreasonable risk of exposure to an airborne infectious disease due to working conditions that are inconsistent with the NY HERO Act.
Employers who fail to adopt a prevention plan may be assessed a civil penalty of not less than USD 50 per day. If employers fail to abide by their written prevention plan, the Commissioner may also assess a penalty against employers of not less than USD 1,000 or more than USD 10,000. Penalties are increased if an employer violates the NY HERO Act more than once in the preceding six years.
The NY HERO Act requires employees to give the employer notice of a violation before bringing a civil action, and employers have 30 days to cure any alleged violation. An employee cannot bring a civil action if the employer remedies the alleged deficiency. An employee must bring the civil action within six months of the employee’s knowledge of the alleged violation.
In addition to the above requirements, effective on 1 November 2021, employees have the right to form joint labour-management workplace safety committees if the employer has ten or more employees. The committee are composed of employee and employer designees, provided at least two-thirds are non-supervisory employees. The committee must be permitted to raise workplace health and safety concerns, review employer policies related to occupational safety and health, and participate in site visits by a government entity. The committee is entitled to meet on a quarterly basis during work hours for up to two hours. Finally, employers must permit the designees to attend a training of no more than four hours, without suffering a loss of pay, regarding worker safety committees and occupational safety and health.
New York private employers should promptly develop and distribute a prevention plan and remain up to date on airborne infectious disease outbreak designations.