The HERO Act amends the New York Labor Law (NYLL) by adding two new sections:

Section 1, NYLL Section 218-b, “Prevention of Occupational Exposure to an Airborne Infectious Disease”: Essentially codifies the type of health and safety requirements found in the New York Forward Guidance. (Since summer 2020, New York private employers who wished to operate in person must comply with extensive health and safety directives in various executive orders, state and local health department orders, and New York Forward Guidance for their specific industry issued in response to the COVID-19 pandemic.)

Section 2, NYLL Section 27-d, “Workplace Safety Committee”: Gives employees the opportunity to create a joint employer and employee committee to address workplace health and safety issues.

Employers may establish the required infectious disease exposure prevention plan either by adopting a model plan developed by the New York Department of Labor that is “relevant to their industry” or by establishing an alternative plan that “equals or exceeds the minimum standards” promulgated by the Department of Labor. Consistent with this requirement, the Act also requires the Department of Labor, in conjunction with the Department of Health, to establish infectious disease exposure prevention standards that are applicable to all “work sites” and differentiated by industry. The concept of a “work site” is defined broadly under the Act, as including “any physical space, including a vehicle, that has been designated as the location where work is performed,” including employer-provided housing and transportation. Beyond being industry and work site specific, the model plans must also specify and distinguish between “different levels of airborne infectious disease exposure,” as well as whether a state of emergency has or has not been declared due to any such infectious disease.

The Act specifically requires the model plans to include requirements on procedures and methods relating to a number of items, including, but not limited to:

  • employee health screenings;
  • face coverings;
  • required personal protective equipment, which must be “provided, used, and maintained in a sanitary and reliable condition at the expense of the employer”;
  • regular cleaning and disinfecting of shared equipment and “frequently touched surfaces” such as workstations, as well as “all surfaces and washable items in other high-risk areas” including restrooms and dining areas;
  • effective social distancing for employees and consumers or customers based upon the risk of illness; and
  • compliance with applicable engineering controls such as proper air flow or other special design requirements.

The Act also explicitly requires that the plan include anti-retaliation requirements. Notably, one of the anti-retaliation provisions in the Act prohibits an employer from taking adverse action against an employee who refuses to work where the employee “reasonably believes, in good faith” that their work exposes them to an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with applicable law and regulations, including the model plans promulgated by the Department of Labor. The Act also permits the Department of Labor to assess civil penalties of not less than $50 per day for failing to adopt a plan, or between $1,000 and $10,000 for failing to comply with a plan, which are multiplied substantially if the employer had a similar violation within the preceding six years.

Beyond permitting the Department of Labor to take administrative action against employers, the Act also permits employees to bring civil actions seeking injunctive relief where an employer is alleged to have violated the plan in a manner that creates a substantial probability of death or serious physical injury. The court adjudicating such an action has the power to not only enjoin the violation, but may also award the employee costs and reasonable attorneys’ fees and liquidated damages up to $20,000.

Workplace safety committees established under the Act are composed of employer and employee designees, but at least two-thirds of the members of any such committee must be non-supervisory employees, and “selected by, and from among” the employer’s non-supervisory employees. Employers are explicitly prohibited from interfering with the selection of employees to serve on the committee and from retaliating against employees for any action relating to their participation in the committee.

Once established, the committees are empowered to perform a number of tasks including: raising health and safety concerns to which the employer “must respond”; reviewing policies that were adopted in response to health and safety laws, rules, and executive orders; participating in site visits by government agencies responsible for enforcing safety and health standards; and regularly scheduling meetings during working hours. Employers must also permit committee members to attend a training, without loss of pay, on the function of the committee, the rights established under the law, and an introduction to occupational safety and health. The section of the Act allowing for the creation of these committees will take effect on November 1, 2021. (Nixon Peabody)

6/4/21 – Section 1: Safety Plan Rule Effective
7/4/21 – Deadline for New York DOL to issue enforceable minimum workplace health and safety standards in response to the COVID-19 pandemic
11/1/21 – Section 2: Safety Committee Rule Effective

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Published by Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered CIPD

Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered MCIPD Lean Six Sigma Black Belt ABOUT: Matthew Burr has over 18-years of experience working in the human resources field, starting his career as an Industrial Relations Intern at Kennedy Valve Manufacturing to most recently founding and managing a human resource consulting company; Burr Consulting, LLC, Talentscape, LLC and Co-Owner of Labor Love, a Labor, and Employment Law poster printing company. Prior to founding the consulting firm, the majority of his career was heavy industry manufacturing and healthcare. He specializes in compliance auditing, training labor and employment law, conflict resolution, performance management, labor, and employment relations. Matthew has a generalist background in HR and operations, while providing strategic HR and operational solutions to his clients, focusing on small and medium sized organizations. He works as an Adjunct at Alfred State University, Tompkins Cortland Community College, and Montgomery Community College. He successfully designed an HR Concentration in the business management major that aligned with both SHRM and HRCI certifications, providing opportunities for students to sit for both the SHRM-CP and aPHR certifications upon completion of the degree, concentration, and internship hours as an Assistant Professor of Management at Elmira College (Retired January 2022). Matthew is also the SHRM Certification Exam Instructor, with a current pass rate of 92% on the SHRM-SCP and 83% pass rate on the SHRM-CP and a combined 88% on both exams over a 7-year period of instructing the course (Elmira College, Collin College & The College of St. Rose). Matthew works as a trainer at Tompkins Cortland Community College, Corning Community College, Broome Community College, and HR Instructor for Certification Preparation for the Human Resource Certification Institute (HRCI). He also acts as an On-Call Mediator and Factfinder through the Public Employment Relations Board in New York State, working with public sector employers and labor unions. PUBLICATIONS: Matthew has over 70+ publications including, American Bar Association (ABA) Experience Magazine, Cornell HR Review, Business Insider, New York State Bar Association (NYSBA), PayScale, Society of Human Resource Management (SHRM), and Expert 360 (in Australia). In early 2017, he published his first book, “$74,000 in 24 Months: How I killed my student loans (and you can too!),” proceeded by his second book, which was published in January 2021, “Slay the Student Loan Dragon: Tips and Tricks on How to Conquer the Student Loan Game” and his most recent book, “Unbox Your HR Career” in July 2023. VOLUNTEER WORK: Matthew is currently the New York State Society of Human Resource Management (NYSSHRM) District-Director. EDUCATION & TRAINING: Additional Training & Development:  SHRM Workplace Coaching and Mentoring Recertification Program, 2020  SHRM Foundation Employing Abilities @Work Certificate, 2020  SHRM Foundation Veterans at Work Certificate Program, 2018  Delta County Chamber of Commerce: Delta Force Leadership Program, 2013 FEATURED IN & ON: Matthew was featured on CNN Money, Fast Company, Fits Small Business, Fox News, Magnify Money, Monster.com, My Twin Tiers, Namely, Student Loan Hero, Smart Sheet and CEO Blog Nation, Human Resource Certification Institute (HRCI), Society of Human Resource Management (SHRM). Burr Consulting, LLC Capabilities Statement General Information: Burr Consulting, LLC Owner: Matthew W. Burr Mission Statement: “Strategically Aligning HR as a Partner for the Success of Your Business” Contact Information: Burr Consulting, LLC What's New in HR Blog Talentscape, LLC Labor Love, LLC (Labor Posters) The HR Support Center The Upstate HR Podcast (607)227-4386 Matthew@Burrconsultingllc.com Facebook: Burr Consulting, LLC LinkedIn: Burr Consulting, LLC Twitter: @Burrconsulting Online Certification Verification: Credibly Dun & Bradstreet (D&B) Number: 080776443 NAICS Codes: 541612, 923130, 54161, 541611, 541613, 611430, 541618, 561312, 561311 SIC: 8742, 8748, 9441, 8748001, 8748026 Our Services HR MANAGEMENT New Hire Orientation; Temporary HR Support; Recruiting and Application Tracking; HR Compliance (ADA, FMLA); Employee Handbook; Policy and Procedure; HRIS; HR Audits; Job Profile Design and Revision; HR Key Performance Indicators; EEO Reporting and Classification; State Unemployment Insurance Services TRAINING & TRAINING DEVELOPMENT Organizational Development; Employee Relations; Workplace Violence; Harassment & Sexual Harassment; Union Awareness; Managerial EMPLOYEE & LABOR RELATIONS Employee Relations Training; Conflict Resolution; Mentoring; Workplace Investigations; Labor Contract Costing; Mediation & Arbitration Prep; Fact-Finding; Workplace Investigations; Coaching & Counseling; Performance Reviews; Contingency Plan Development; Contingency Plan Training; State of New York Public Employment Relations Board (PERB)PERB Mediation and Fact-Finding Panels (Albany, NY covering the Elmira, NY Area) HIRING & RECRUITMENT Applicant Tracking Systems; Metric Development; Interview Training; Workforce Planning; Recruitment; Interviews; Job Offers; New Hire Process POLICY & COMPENSATION Group Plans – Healthcare, Dental, Vision, Group Life, Short- and Long-Term Disability; Retirement – 401(k), Profit Sharing, Roth; Workers Compensation; Total Compensation Design and Strategy; Deferred Compensation Plans; Salary Surveys; Reward Systems; Online Payroll; Customized Payroll Processing; Employee Self Service; Customized Reporting HR COMPLIANCE MATERIALS Burr Consulting, LLC is excited to announce a new partnership with Labor Love LLC, expanding our services to include HR printed materials compliant with industry standards.

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