The New York legislature passed and the governor signed the New York HERO Act on May 5, 2021. This new legislation requires ALL employers to adopt an airborne infections disease safety standard, and requires employers with 10 or more employees to “permit employees to establish and administer a joint labor-management workplace safety committee.” All types of private employers are included in the new requirements and “farmworkers” are specifically identified as included employees in the legal text.
The legislation defines the worksite as “any physical space, including a vehicle, that has been designated as the location where work is performed.” It goes on to include in the worksite definition “employer-provided housing and employer-provided transportation at, to or from the work site…”
Airborne Infectious Disease Exposure Prevention Plans, Due August 5, 2021
The NY State Department of Labor (NYSDOL), in consultation with NYS Department of Health, is responsible for implementing the new law. They created model safety plans with ready-to-use templates for many industries including agriculture. Employers have the option of simply adopting NYSDOL’s model standard or developing a plan of their own that meets or exceeds all of the law’s requirements. The law requires the plans to specifically address the following items: employee health screenings, face coverings, personal protective equipment (PPE), workplace hand hygiene, cleaning and disinfecting of share equipment, social distancing, compliance with quarantine or isolation orders, engineering controls such as ventilation, designation of supervisors to enforce the plan, compliance with regulations, and the verbal review with employees of all related employer policies.
To get into compliance, farm employers can download the agriculture template, and add information specific for your farm. There are 9 places in the template where you can add farm-specific information. Note that this template is in “fillable PDF” so you should be able to type right in the specially provided boxes and lines on the form.
The text of the HERO act says employers must provide their plans to employees, in writing, in English and in their native language. Further, it says the plan must be posted prominently in the workplace, included in the employee handbook if the employer has one, and made available upon request to contractors, employees, and government representatives. The HERO Act website states that “Employers are required to provide a copy of the adopted airborne infectious disease exposure prevention plan and post the same in a visible and prominent location within each worksite.” Translations of the template are not available on the website at the time of this writing.
It’s important to note that, while private employers are required to have a plan for their business by August 5, 2021, the plans are not currently required to be in effect. The plans will only be activated “when an airborne infectious disease is designated by the New York State Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health.”
Joint Labor-Management Workplace Safety Committee
A less-publicized part of the HERO Act requires employers with 10 or more employees (at any time during the year), to “permit employees to establish and administer a joint labor-management workplace safety committee.” This committee can consist of both employee and employer representatives but it must include at least 2/3 “non-supervisory employees.” The committee must be co-chaired by a representative of the employer and a non-supervisory employee. The committees must be “authorized to perform the following tasks, including but not limited to:”
- Raising health and safety concerns.
- Reviewing safety policies related to the law or to worker’s compensation.
- Reviewing the adoption of polices in the workplace.
- Participating in site visits by government enforcing agencies.
- Reviewing any safety reports filed by the employer.
- Scheduling meetings during work hours at least once per quarter.
The HERO Act website remains silent about this safety committee aspect of the new law but employers should stay tuned as regulations evolve.
Anti-Retaliation Measures and Penalties
The HERO Act includes extensive and specific discussion of anti-retaliation measures regarding all aspects of the new law. Employers are well-advised to take this law seriously and avoid any adverse actions against an employee for asking or complaining about potential airborne diseases, safety issues, or prevention plans at work or in employer-provided housing. Seek legal counsel for specific legal questions.
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By Richard Stup, Cornell University. Permission granted to repost, quote, and reprint with author attribution.
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