By Rose Miller
Gov. Andrew Cuomo signed the New York Health and Essential Rights Act (NY HERO Act) into law on May 5. This new act will impose substantial responsibilities on all private employers to provide and maintain safe workplaces for the ongoing COVID-19 pandemic, and for all airborne infectious disease outbreaks in the future.
Don’t shoot the messenger. Seems like New York has rolled out a new regulation to implement every month. A whole host of changes will need to be put in place by Sept. 2. As a small business owner, I feel your pain.
The first thing employers will need to do is to develop an industry specific prevention work plan. Work plans include how the employer handles workplace safety protocols such as health screenings, face coverings, personal protective equipment, hygiene stations, regular cleaning/disinfecting, social distancing, and other controls related to infectious disease safety concerns. There are some options for employers under a collective bargaining agreement.
Some employers have had some type of prevention work plan already in place. My firm was one of the only vendors, who included such a work plan as a supplement to the employee handbook. Existing plans will need to be updated to comply with the act and it must be included in all employee handbooks and posted at all work sites.
Many employers are waiting for the Department of Labor model which is expected around July 4. However, there is great deal of work to be done in mapping out the who, what, where and how the plan works specific to your organizations. A customized plan must meet or exceed the minimum standards in the act and plans must include participation of employees in its development.
There are many other aspects of implementing the prevention work plan. Supervisors are tasked with the responsibility for compliance, and they will need to be trained on the plan. The plan needs to be “verbally communicated” to employees.
The work plan must include anti-discrimination/anti-retaliation protection for employees who refuse to work based on “reasonable” and “good faith” belief working conditions are unsafe. Many employers say some employees have unreasonable fears of coming back to work. The state will require employees to submit written notice of the alleged safety violation.
Employees cannot sue the employer until 30 days after submitting a safe notice unless the employer immediate dismisses or ignores the notice. A local attorney, who represents workers due to unsafe work conditions, told us many employers did not do the right things during the coronavirus pandemic. They ignored CDC guidelines such as testing, cleaning and face coverings.
The attorney anticipates more litigation regarding employers dropping testing requirements, and we now have the additional risks from complaints from vaccinated employees exposed to employees refusing to get vaccinated and refusing to wear a mask. This is a big issue because of current workplace conflicts related to polarized opinions on virus prevention and how workplace safety issues have been politicized.
Which brings me to the second part of compliance. Employers will have until Nov. 1 to form a safety committee. The committee component covers private sector employers with 10 or more employees.
The committee must contain a combination of two-thirds non-supervisory employees and one-third management. The biggest question is which rank-file will service on a minimum four-person committee. The act states the employer cannot make the decision, and if unionized, the union decides.
If your company already has a workplace safety committee, there is no need to create a new one unless it doesn’t meet all requirements.
The committee will be responsible for raising health and safety concerns, reviewing safety policies, reviewing/responding to employee written complaints, and participating in agency site visits. The committee must be allowed to meet at least quarterly for no more than two hours during work hours. They must be allowed to attend up to four hours of paid training.
Additionally, employers must protect employees against retaliation for their participation in the safety committee.
The act outlines severe penalties for non-compliance. Since there is an increased ability for employees to sue under the act, we are recommending employers contact their insurance broker to review the limits on their employer practices liability insurance or to get this insurance in place as soon as possible.