Employers facing deadline to comply with NY HERO Act and infectious disease prevention standards

The clock’s ticking for employers to comply with new mandatory health and safety requirements created by the NY HERO Act in response to the COVID-19 pandemic.

The law, signed by Gov. Andrew M. Cuomo in May, is intended to prevent current and future occupational exposure to airborne infectious diseases at workplaces.

The NYS Department of Labor has published standards for all worksites, differentiated by industry. See dol.ny.gov/ny-hero-act

Once published, employers have 30 days to adopt a plan that meets or exceeds those standards and 60 days to provide that plan to employees. The HERO Act also requires employers with at least 10 employees to meet a Nov. 1 deadline to establish a joint labor-management workplace safety committee.

"This is all a work in progress," says Brian Conneely, a partner in the employment and labor practice at Rivkin Radler LLP in Uniondale.

A guideline for employers

The DOL was scheduled to release the standards on June 4, but it was delayed to July 5 by the State Legislature to give DOL more time to devise industry standards and to amend the law to add provisions including language meant to limit the potential for frivolous lawsuits, Conneely says.

"The extension was welcome by employers because it gives everyone more time to adopt a plan," says Carol Goodman, chair of the Employment Practice of Herrick, Feinstein LLP based in the NYC office.

The guidelines serve as a road map for employers to adopt the DOL standards for their industry or adopt their own plan that meets or exceeds those standards, Goodman says.

Goodman says many employers already had a basic safety plan in place under the NY Forward Safety Plan last year outlining how its workplace will prevent the spread of COVID-19. That plan is no longer in place, Goodman says, and will be replaced by the Hero Act. The Act establishes mandatory workplace safety protocols not just for COVID-19 but for all airborne infectious disease, Goodman says, and will likely address more general safety standards and steps to prepare for the future.

And the safety plan requirement impacts employers of every size, she says.

What the plan covers

Key areas the plan must address include social distancing, exhaust ventilation, sanitization and PPE usage, says Charles Hunt, chief operating officer at ABLE Safety Consulting in Massapequa Park, which provides OSHA compliance assistance and training.

He said the greatest expense employers may incur is in ensuring there’s proper airflow and exhaust ventilation based on the standards.

"If a space doesn’t have adequate ventilation they’ll have to invest in a ventilation system," Hunt says.

Since employers already had to create a safety plan for COVID last year to reopen, most are "probably about 90% of where they need to be," says Christine Ippolito, principal at Hauppauge-based Compass Workforce Solutions, a WBE-certified HR consulting firm.

She said she had worked with clients to adopt the NY Forward Safety Plan, but also created separate stand-alone policies and specific safety procedures all employees were required to sign before they could work in the office or on-site at the employer’s work locations.

Joint workplace safety committee

Under the HERO Act, by Nov. 1, employers with 10 or more employees must establish a joint labor-management workplace safety committee with at least two-thirds of its members consisting of nonsupervisory employees. Among its many tasks will be to raise worksite health and safety concerns to employers.

"I think the part that’s going to be more onerous isn’t the safety plan, but the running of the safety committee," Ippolito cautions.

"I believe employers are going to have to educate the safety committee in good public hygiene practices, Ippolito says.

Employers also may want to budget for training, says Conneely, for instance training persons at worksites responsible to implement safety standards.

He also says the U.S. Occupational Safety and Health Administration on June 10 released comprehensive emergency temporary COVID-19 standards for health care workers that goes into effect July 6 and updated guidance for all other workplaces. Employers may want to check those out, says Conneely, who questions whether those federal standards / guidance might later ultimately preempt NYS standards or portions of the HERO Act. (See https://tinyurl.com/4yv8t39b)

Still, employers should work toward compliance considering fines are at least $50 a day for failure to adopt a plan and range from $1,000 to $10,000 for failure to comply with the adopted plan, Hunt says.

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Clarification: This story has been updated to note that the NYS Department of Labor has published standards for all worksites.