First-of-Its-Kind New York Law Will Require Airborne Disease Standards

Author: Robert S. Teachout, XpertHR Legal Editor

May 10, 2021

A first-in-the-nation law will soon require New York businesses to create and adopt mandatory safety standards for all airborne infectious diseases, including COVID-19. The New York Health and Essential Rights Act (NY HERO Act), signed May 6 by Governor Andrew Cuomo, requires all private employers to have enforceable safety standards to prevent further spread of the coronavirus and other airborne diseases. The law also allows for the creation of joint workplace safety committees authorized to raise health and safety issues and evaluate related policies.

The provisions on establishing safety standards take effect June 4, and the workplace safety committee provisions take effect November 1.

Airborne Infectious Disease Safety Standards

The NY HERO Act requires the Commissioner of Labor, in consultation with the Department of Health, to create a standard airborne infectious disease exposure prevention plan for all work sites, differentiated by industry. The standard will set minimum requirements for procedures and methods including:

  • Health screenings;
  • Face coverings and personal protective equipment (PPE);
  • Workplace hand hygiene;
  • Cleaning and disinfecting of shared equipment and common use surfaces;
  • Social distancing and increased physical workspace; and
  • Compliance with engineering controls such as proper air flow and ventilation.

The standard will also require compliance with applicable federal and state laws, rules and guidance.

All employers in the state will be required to either adopt the model standard relevant to their industry or establish an alternative plan that equals or exceeds the minimum standards provided by the model standard. Any alternative plan must be made in agreement with the collective bargaining representative if the workplace has a union, or with the meaningful participation of employees if there is no union.

Workplace Safety Committees

The NY HERO Act also gives employees a direct role the workplace safety process by allowing employees at workplaces with 10 or more employees to establish joint labor-management workplace safety committees without employer interference. Two-thirds of each committee must be made up of non-supervisory employees designated without employer interference by non-supervisory employees. The committee and its members are authorized by law to:

  • Raise health and safety concerns, hazards, complaints and violations to the employer;
  • Review and provide feedback on any policy put in place under the NY HERO Act or the workers' compensation law;
  • Review any policy adopted in response to any health or safety law, regulation or other directive;
  • Participate in site visits by enforcement agencies;
  • Review any report filed by the employer related to the health and safety of the workplace; and
  • Regularly schedule a meeting during work hours at least once a quarter.

Anti-Retaliation Provisions

The law prohibits retaliation against employees for reporting violations of the law or a concern of airborne infectious disease exposure, for exercising their rights under the NY HERO Act (including participating on a workplace safety committee), or for refusing to work where the working conditions create an unreasonable risk of exposure.

Violations of the law are subject to civil penalties and civil lawsuits. Remedies for retaliation claims may include reinstatement, awards of lost compensation and damages, liquidated damages, costs and reasonable attorney fees.