The New York HERO Act

On April 21, 2021, the New York Health and Essential Rights Act, also known as the NY HERO Act, passed both houses and now awaits the signature of Governor Cuomo to become law. The NY HERO Act aims to provide industry specific health protections to all workers. The Act will require all businesses to follow and adopt COVID-19 protection protocols to protect workers from airborne illnesses or face fines. Employers who fail to adopt a relevant plan will be subject to a penalty of at least $50 per day until such a plan is implemented. An employer who fails to comply with its adopted plan can be subject to a fine ranging from $1,000 to $10,000. The NY Hero Act also includes strong anti-retaliation provisions protecting workers’ from fear of reprisal who report their employers’ failure to follow the newly mandated safety precautions or if an employee refuses to come to work due to a reasonable fear that the workplace will expose the employee to health and safety risks. The Act is aided at protecting workers’ health and safety by steaming the spread of COVID-19 and other airborne diseases.

Specifically, the NY HERO ACT will task the New York Department of Labor (“DOL”) to issue airborne infectious disease standards for businesses that will include protocols on testing, face masks, personal protective equipment, social distancing, cleaning and disinfecting protocols, as well as other measures. The act will require the DOL to issue enforceable minimum workplace health and safety standards within 30 days of the governor’s signature. Businesses will have the option of adopting the DOL standards or enforcing standards developed by the business that are stricter than those issued by the DOL. The standards will be crafted by industry-specific worker committees.

The law also enables employees to bring suit seeking injunctive relief against their employer for failing to comply with their health and safety standards. A court could enjoin an employer’s conduct and award the plaintiff liquidated damages of up to $20,000, as well as both attorneys’ fees and court costs, unless the employer can demonstrate that it made good faith attempts to comply with the law.

By Cathryn Harris-Marchesi

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