Show Me a HERO: Department of Labor Clarifies New York’s HERO Act

The COVID-19 pandemic has laid bare the serious threat posed by unchecked airborne infectious diseases, and has prompted New York to pass the Health and Essential Rights Act (aka the “HERO Act”), which serves to establish health and safety protocols for workers across the state. Like we said in our coverage back in June, the mandatory safety standards set forth by the act apply to all airborne diseases, not just COVID-19, and as such are intended to remain a permanent feature of the employee safety measures established by virtually all private employers across the state.

As with the introduction of any new piece of legislation, questions remained even after the law came into effect. At the end of September, the Department of Labor issued an updated FAQ to address lingering and emergent issues with Section 1 of the Act, which relates to the implementation of safety plans.

Until at least October 31, COVID-19 continues to be classified as a “highly contagious communicable disease that presents a serious risk of harm to the public health” under the HERO Act.

That means that before October 31, private employers must:

  1. Draft a plan that complies with DOL guidance on the HERO Act;
  2. Put that plan into effect; and
  3. Give employees (and contractors!) a verbal review of the plan.

How do I know my plan is in compliance with the HERO Act?

The DOL has helpfully provided a baseline model plan, which can be reviewed here. Recognizing that the model is not a one-size-fits-all solution, the DOL has also issued industry-specific model plans, which can address more nuanced issues. The DOL recommends that the standard model plan be implemented in office environments.

Remind me—what am I supposed to do once my plan is drafted?

It depends. If your plan is a simple adoption of a DOL model plan, then you just need to give a copy to your employees within 30 days after creating it. Make sure you post copies at any work sites where it can be viewed by employees, and include it with any employee handbooks for any incoming employees.

If, however, your plan contains any additions or alterations to a model plan (while remaining compliant), you will have to solicit employee feedback, although for the near future that feedback need not be heeded. Starting on November 1, employers with at least ten employees must allow employees to form a workplace safety committee. Any changes to a policy put in place after that point will need to be reviewed by that workplace safety committee, as applicable. (More guidance on this point is expected to be released before November 1.)

This only applies to “employees,” right?

No! Despite the Act’s extensive use of the term “employee,” employers are responsible for disseminating their plans among and enforcing their plans with people “at all work sites over which employers have the ability to exercise control, including independent contractors, individuals working for staffing agencies, and other workers not traditionally defined as employees.”

What’s the point of all this hassle? Everyone in my workplace is vaccinated. Isn’t COVID basically over?

Don’t be complacent—COVID is still very much real, and still poses a threat to the health and safety of even those who have been vaccinated. Implementation of the HERO Act policies is another measure meant to stamp out the virus and return us to normalcy.

An overriding obligation for employers is to maintain their policies. As the past year has shown us, the virus can move quickly, and appropriate responsive measures may change in an instant.

Moreover, the policies put in place for COVID-19, while generally applicable to other, hypothetical airborne infectious diseases, may not the same policies that will have to be implemented the next time a virus should meet the HERO Act’s definition. By putting a policy in place now, New Yorkers will be better prepared to face the next outbreak, if and when it should arrive.

We will update this blog as more information becomes available. In the meantime, if you have any questions about the HERO Act or any other COVID policies, reach out to Kelley Drye & Warren LLP.