The HERO Act is a new law requiring a plan for airborne diseases.
New York Governor Kathy Hochul recently announced that COVID-19 has been designated as a “highly contagious communicable disease” that presents a serious risk of harm to public health under the state’s HERO Act. In light of this, employers in the state must implement an airborne infectious disease exposure prevention plan (more commonly referred to as a “workplace safety plan”).
New York Employers Required to Adopt Safety Plans
New York employers were required to adopt, distribute, post, and add them to employee handbooks by September 4th. Because COVID-19 has been officially designated as a highly contagious communicable disease that presents a serious risk of harm to the public health. As a result, with the designation in effect until at least September 30th, the State Health Commissioner says that employers’ HERO Act Safety Plans must be implemented.
These plans must be at least as comprehensive as the model plans provided as guidance by the New York State Department of Labor. The timeline for implementation hasn’t been stated, but the NY Standard requires that employers must “finalize and promptly activate” their Safety Plans.
Therefore, employers should immediately review their Safety Plan and document any changes in the “Plan Revision History” section of the Safety Plan. The most notable measures that must be immediately implemented include the following:
- Exposure controls, like:
o A “stay at home” policy for employees with symptoms;
o Employees health screening at the start of shifts;
o Face coverings “to the greatest extent possible” and where recommended by the New York State Department of Health (“NYSDOH”) and Centers for Disease Control and Prevention (“CDC”); and
o physical distancing.
- Engineering controls, such as:
o Increased mechanical; and
o Natural ventilation
- Administrative controls, such as:
o Training for staff;
o Limited use of shared workstations; and
o Additional breaks for handwashing and cleaning
- Use of required personal protective equipment (“PPE”).
In addition, New York employers must provide every employee with a copy of their Safety Plan in English (or in the employee’s identified primary language if model plans have been made available in that language). Supervisory employee(s) who are designated to ensure compliance must begin overseeing compliance with the requirements of the Safety Plans.
Training must be provided at no cost to employees and must be during work hours, if possible. If training during work hours isn’t possible, employees must be compensated for the training time with pay or time off.
Training must be provided in content and vocabulary consistent with employees’ educational level, literacy, and preferred language. Plus, this training must be provided either in person or through telephonic, electronic, or similar means.
The penalties under the new law include civil penalties of $50 per day for failure to adopt or implement an appropriate Safety Plan and a fine of $1,000 to $10,000 for failure to comply with an adopted and implemented Safety Plan.
Employees may also seek injunctive relief against employers alleged to have violated their Safety Plan. in addition, a court may enjoin the employer’s conduct and/or order liquidated damages of no greater than $20,000.
Summary of the HERO Act
Compliance with the HERO Act requires New York employers to take the following steps:
• Read the DOL’s Airborne Infectious Disease Exposure Prevention Standard;
• Complete and adopt an airborne infectious disease exposure prevention plan;
• Provide a copy of the plan to all employees;
• Post the plan in a visible and prominent location at the work location;
• Include a copy of the plan in your employee handbook; and
• Include a copy of the plan in your new hire onboarding materials.
Make sure that your small business is compliance with New York and federal employment laws. There’s much to know and understand. You should work with an experienced New York small business employment attorney.
Francine E. Love is the Founder & Managing Attorney at LOVE LAW FIRM, PLLC which dedicates its practice to serving entrepreneurs, startups and small businesses. The opinions expressed are those of the author. This article is for general information purposes and is not intended to be and should not be taken as legal advice.