New York’s HERO Act Imposes New Employer Requirements to Help Prevent Spread of Airborne Infectious Diseases

May 13, 2021 | COVID-19, Household Employer Policies, Labor Laws

The HERO Act requires employers in New York State, including families with household help, to develop safety plans that help prevent the spread of airborne infectious diseases in the workplace.

In an effort to prevent the exposure and spread of coronavirus and other airborne infectious disease outbreaks and maintain safe workplaces, New York State just passed the Health and Essential Rights Act (HERO Act). The law adds two new sections to New York Labor Law and includes additional compliance requirements for household employers.

The HERO Act covers all employers in the state, regardless of size, including families with household help like nannies, senior caregivers, and housekeepers.

The first section of the HERO Act requires employers to prepare model safety plans for airborne infectious disease prevention and blocks discrimination or retaliation against workers who exercise their rights under the Act.

Model safety plans, to be created by the New York State Department of Labor in consultation with the state’s Department of Health, will address 11 topics:

employee health screenings
face coverings
personal protective equipment
hand hygiene
cleaning and disinfecting of shared equipment and frequently touched surfaces (like doorknobs and telephones)
social distancing
mandatory or precautionary isolation or quarantine
engineering controls
enforcement of the safety plan
compliance with employee notices
verbal review of standards, policies, and employee rights

These model safety plans will be published in English, Spanish, and additional languages if necessary.

Household employers can either adopt a model plan or create one of their own, as long as it meets or exceeds the minimum standards created by New York State, is established with employee participation, and is customized to incorporate industry-specific hazards and worksite considerations.

The plan must be:

distributed in English and an employee’s primary language
posted at the worksite
incorporated into an employee handbook (if one is in use)
given out to all new hires
available for review upon request

Household employers cannot retaliate against their workers for:

exercising their rights under the HERO Act
reporting violations or the employer’s plan to officials
reporting a concern about exposure to an airborne disease to an employer or government entity
refusing to work when the employee believes in good faith that there is dangerous exposure caused by working conditions inconsistent with laws or the required safety plan, with certain exceptions

Failure to comply with the HERO Act could result in penalties of $50/day for not adopting a plan and between $1,000 and $10,000 for not following a plan.

Employees, in some instances, may seek injunctive relief and courts could award costs, including attorneys’ fees and liquidated damages of up to $20,000.

While it may take some time for the labor department to create the model plans, household employers in New York State should review and revise their current health and safety procedures, including any return-to-work plans, to comply with these new regulations.

The requirement to adopt a safety plan takes effect on June 4, 2021.

However, Gov. Cuomo stated, in a signed memorandum:

“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 development and implementing the workplace standards, including a clear timeline, and providing for an immediate requirement for employers to cure violations in order to better protect the safety of workers, and limit court litigation in those private rights of action, in limited circumstances where employers are acting in bad faith and failing to cure deficiencies.”

The requirements of the other section of the HERO Act will not apply in most household employment situations as it affects employers with at least 10 workers or have an annual payroll of over $800,000 and a “workers’ compensation experience modification rating of more than 1.2.” Employers that meet this criterion must permit their workers to establish and administer a joint labor-management workplace safety committee.

GTM Payroll Services will continue to monitor developments with the HERO Act and provide updates for household employers.