On May 5, 2021, Governor Cuomo signed the New York Health and Essential Rights Act (“NY HERO Act”). This Law, which amends Labor Law §218-b, was created to specifically address workplace safety in light of COVID-19. It will be effective on June 4, 2021.
First, the Law directs the Department of Labor to create a “model airborne infectious disease exposure prevention standard,” to prevent minimum requirements for preventing exposure to airborne infectious diseases in the workplace. Labor Law §218-b(2). These standards, which vary by industry, can include protocols such as face masks, health screening and social distancing. Employers can either adopt the model plan for their industry or establish an alternative plan with meaningful participation by employees or a union. Labor Law §218-b(4).
Most importantly, the Law (Labor Law 218-b(8)) provides employees a right to sue in court if an employer discriminates or retaliates against them for:
- Exercising their rights under the NY HERO Act or under the exposure prevention plan;
- Reporting violations of the NY HERO Act or exposure prevention plan to a government entity or official;
- Reporting an “an airborne infectious disease exposure concern” to their employer or a government entity or official;
- Refusing to work where the employee reasonably believes, in good faith, that the workplace creates “an unreasonable risk of exposure to an airborne infectious disease” and the employer failed to cure the problem after the employee complained.
The Law also protects against retaliation for employees who complain about violations of these standards. Labor Law §218-b(3).
Any employee who feels an employer has violated the standards “in a manner that creates a substantial probability that death or serious physical harm could result” can file a claim in court and obtain an injunction, attorney’s fees and liquidated damages of up to $20,000. Labor Law §218-b(10)(b). The law protects employers by providing that if an employee brings a claim that is found to be “completely without merit in law and undertaken primarily to harass or maliciously injure another,” a court may impose sanctions against the attorney or employee asserting the claim.
This groundbreaking law is the first time that employees will have the right to take action in response to an unsafe workplace. Schwartz Perry & Heller applauds New York State for taking this bold action to ensure workplace safety.