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Is your company ready for the New York State Hero Act of 2021?

Updated: Aug 11, 2021

Recently the governor of New York State signed the New York Health and Essential Rights (HERO) Act that provides rules for all private employers regarding the spread of airborne illnesses like Covid-19. This unique legislation represented the first bill of its kind in the country and will take effect on June 4, 2021. The state government felt the legislation was needed to make permanent solutions for these types of infections after temporary measures were adopted during the pandemic.

This bill has several keys parts. The first part of the bill enlists the "commissioner of health" in conjunction with the department of health (presumably of New York State), to issue prevention standards for each industry that will dictate monitoring, testing, PPE, and other safety measures. As the bill is issued to address all "airborne" diseases, it will cover employees for all communicable viral, bacterial, and fungal pathogens. Therefore, this action will not only cover influenza and rhinoviruses associated with the common cold but could also include community-acquired bacterial pneumonias and a host of environmentally related pathogens such as molds. In many cases, the origin of the pathogen may be difficult to ascertain but the businesses may certainly be subject to risk.

The list of required items covers other areas as well. The employer is required to create an airborne infectious disease prevention plan and make it available for review to all employees and upon request public officials. Another aspect of the bill requires the employer to create a joint labor-management workplace safety committee with adequate worker representation. This committee can review any workplace-related rules put in place to address these airborne pathogens and participate in any external reviews of the workplace in these areas. Other major issues include anti-retaliatory provisions against workers who speak up to limit their fear of reprisal.

Generally, OSHA (Occupational Safety and Health Administration), which is part of the federal Department of Labor and has individual state programs in 22 states, would serve as the de facto architect of these health and safety regulations. In the case of New York, the state government created its own rules as it does not have a state OSHA program. Presumably, employers would then have to comply with both state and federal regulations regarding these issues after the passage of this legislation (unlike in states with a state-run OSHA which would be their regulatory standard).

In an important provision, more information about the accountability of the employer is stated. Here, the employer is subject to the "attorney general" (again presumably of New York State) who can file actions on behalf of the people against the employer. This addition ensures that employers need to take this mandate seriously or face being singled out for violations by a powerful deep-resourced arm of the state government.

The additional burden imposed by the HERO Act will vary for each business and creates extraordinary questions. Symptom monitoring has become commonplace during the pandemic and will need to continue for all airborne diseases. There is also much uncertainty regarding the scope of this legislation. While seasonal diseases like colds and flu will be included, questions stand out whether this monitoring will be year-round.

Many other vaccination related questions are also suggested. Will workers have to answer symptom questions on other rarer airborne diseases such as measles, mumps, and tuberculosis? If they have been vaccinated for some of these diseases, will they still have to answer questions. Will they need to prove they have been vaccinated to avoid daily questions on these topics. How will these data be monitored and kept confidential to avoid conflicts with current laws regarding protected health information or the American with Disabilities Act? How long will these data need to be stored in case there is an oversight visit or civil action? Many questions abound regarding the worker safety committees. How much power will those committees have to impose rules on the larger workplace? Will the minutes be public or be subject to leaks and other pressures? How do employers plan on the possible business risk from the actions of these committees?

While the HERO act only functions as law in New York State, advocates in other states may see the product as a template for future legislation in other parts of the country. It was championed by workers' rights advocates and union leaders alike and was hailed to bring about a new culture of safety for all workers at their place of employment.

Multiple organizations including the National Federation of Independent Business, the New York State Restaurant Association, and the Business Council opposed the action due to its perceived damage to employers. The potential cost to employers portends to be even more consequential as many have never regained their full revenue streams from the pre-pandemic era.

The structure of the penalties is intriguing. Non-compliant employers pay daily fines up to $50 day for failing to adopt a sufficient plan and up to $10,000 for failing to comply with it. However, the employers are subject to civil liability if they do not comply with these requirements. This latter provision may create the more punitive aspect of these new mandates to companies as the fines are far more modest in scope.

At a time when the pandemic is claiming fewer victims in North America and Western Europe, New York State is creating more rules to prepare for future pandemics and seasonal afflictions. Businesses will need to prepare now to satisfy regulatory requirements regarding the Hero Act and its potential intrusiveness.

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