The past year and a half have been hard for New York residents and essential workers worldwide. The COVID-19 pandemic has drawn attention to just how unprepared businesses were to respond to infectious diseases at work. Now the HERO Act aims to set a new standard, empowering employees to stand up when their employers put their health at risk.

New York COVID Response Triggers New Employee Protection Law

New York Assemblymember Karines Reyes (D-Bronx) was a nurse before she was a politician. Her experience working in the medical field during the pandemic inspired her to push for changes to the state’s health and safety standards, particularly when it comes to infectious diseases. She sponsored the New York Health and Essential Rights Act (NY HERO Act). She said:

“I am honored to have sponsored the NY HERO Act that was borne out of my very own experiences serving as a nurse on the frontlines during the peak of the pandemic. It is crucial that workers are able to operate in a safe environment and have the full support of New York State.”

The bill (S. 1034-B/A.2681-B) required the New York State Department of Labor (NYSDOL) to develop and enforce minimum industry-specific standards for businesses’ response to a risk of infectious, airborne disease in the workplace. While the bill wasn’t specific about the protections, NYSDOL is expected to set policies for facemasks based on exposure levels and create ventilation standards for workplaces. Co-sponsor, Senate Deputy Majority Leader Michael Gianaris (D-Queens), added:

“Too many workers have already sacrificed their health for our community’s benefit. The New York HERO Act will honor their efforts by giving workers the tools to protect themselves while on the job.”

Governor Cuomo Signs the HERO Act, But Demands Immediate Amendments

The HERO Act became law on May 5, 2021, when New York Governor Andrew Cuomo signed it. However, he did that based on an agreement he had reached with lawmakers to enact immediate amendments. In signing the HERO Act he said:

“I have secured an agreement with the Legislature to make technical changes to the bill, including giving the department of labor and employers more specific instructions in developing and implementing the workplace standards . . . . And providing for an immediate requirement for employers to cure violations in order to better protect the safety of workers, and limit lengthy court litigation to those private rights of action, in limited circumstances where employers are acting in bad faith and failing to cure deficiencies.”

Those amendments passed both houses of the New York state legislature on June 14, 2021. They clarified, modified, and in some cases limited the roles of NYSDOL and employees, while giving employers the right to advance notice of any enforcement action, and an opportunity to to correct deficiencies in workplace safety.

What the Amended NY HERO Act Means for Employees

The NY HERO Act is intended to protect employees and empower state regulators to enforce workplace safety against infectious diseases. As amended, the law seeks to balance employees’ rights to a safe workplace environment with employers’ challenges implementing the NYSDOL safety protocols.

Timeline for Adopting Safety Standards

The original HERO Act wasn’t clear on when and how the new safety standards would go into effect. Under the amended HERO Act, the timeline is clear:

• July 5, 2021: NYSDOL must publish industry-specific safety standards
• 30 days after publication: Employers must adopt the NYSDOL standards or create their own HERO Act safety protocols
• 60 days after publications: Employers must put their safety protocols in employees’ hands.

By the end of summer, businesses across the state must have plans in place to respond to outbreaks of COVID-19 or similar airborne infectious diseases. That timing is crucial, as some scientists believe COVID-19, like influenza and the common cold, will become a “recurrent seasonal disease” in the fall and winter.

Workplace Safety Committees

The HERO Act empowers workers to stand up for their own safety at work. Companies with at least 10 employees must allow workers to create joint labor-management workplace safety committees. These committees have the authority to review employers’ new health and safety policies, and ensure they measure up to NYSDOL standards.

Under the original act, these committees could address any policy related to the New York Workers’ Compensation Law. However, the amendments restricted their authority to just policies related to occupational health and safety. They also limit the number of committees to one per worksite, and provide them only two hours of paid working time for meetings, and four hours for training.

Civil Lawsuits Against Employers Refusing Safety Protocol

While the NYSDOL has the power to enforce the HERO Act, employees don’t have to wait for the state to protect their health and safety. The law includes a private cause of action, allowing employees to sue their employers for HERO Act violations. However, the amended law placed several restrictions on that right to sue:

• Employees must give their employer 30 days’ notice and an opportunity to cure the violation before filing their complaint except in cases of bad faith.
• Employees can only seek injunctive relief if violations “create [] a substantial probability that death or serious physical harm could result to the employee.”
• Employees must file their complaint within 6 months of learning about the violations
• Employees must prove damages worth up to $20,000 (the earlier version included specific liquidated damages of $50 per day).
• Employees could face attorney fee sanctions if a judge believes their claim is frivolous.

At Eisenberg & Baum, our experienced employment attorneys care about workers’ safety on the job. We understand the HERO Act and can help you and your coworkers enforce it. If your employer is ignoring its duty to protect you from infectious disease, we can help. Contact us today to schedule a free consultation.