LeadingAge NY Provides Clarification on HERO Act

Members have understandably been confused about the HERO Act, which types of providers it applies to, and what needs to be done at this juncture to implement. This article seeks to clarify what you should be focused on at this moment.

Wait, I thought I was exempt…

First and foremost, most members have to implement an aspect of the HERO Act by Nov. 1^st, regardless of whether you are an entity that was held to the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) creating specific obligations for employers to provide protections to workers from occupational exposure to COVID-19 in certain health care settings. Those who had to comply with the OSHA ETS were exempt from having to address the HERO Act requirement to develop an airborne infectious disease exposure prevention plan. However, the second part of the HERO Act adds a new section to the Labor Law requiring private employers to allow employees to establish and administer a joint labor-management workplace safety committee at each worksite. This section will take effect on Nov. 1, 2021.

OK, who does this apply to?

The law requires private employers to allow employees “to establish and administer a joint labor-management workplace safety committee” at each worksite, and only private employers that employ 10 or more employees are covered under this new law. LeadingAge NY has confirmed with our counsel that county- or State-run entities or other government-run organizations are not included in this requirement.

OK, so what needs to be done by Nov. 1^st?

As noted above, the law requires employers to allow employees “to establish and administer a joint labor-management workplace safety committee” at each worksite.

Despite this language, there are parameters to the committee, should the employees want to establish one. Additionally, there are worker protections that employers should be aware of.

Workplace Safety Committee Parameters

First off, in the event that the employer already has a similar committee in place that operates consistent with this new law, the employer is exempt from creating an additional workplace safety committee.

The safety committee shall consist of “employee and employer designees, provided at least two-thirds are non-supervisory employees,” and shall be “co-chaired by a representative of the employer and non-supervisory employees.”
If there is a union present, the labor representative will be responsible for selecting the employees of the committee.
Employers are prohibited from interfering with the selection of the employees on the committee, those who serve on the committee, or the employee’s performance of duties in relation to the committee.
Employers must allow the “safety committee designees to attend a training of no longer than four hours, without suffering a loss of pay, on the function of worker safety committees, rights established under [the Labor Law], and an introduction to occupational safety and health.”

Under this new provision of the Labor Law, the workplace safety committee is permitted to perform the following tasks:

Raise health and safety concerns, hazards, complaints, and violations to the employer, to which the employer must respond.
Review any policy put in place in the workplace required by law and relating to occupational safety and health and provide feedback on such policy.
Review the adoption of any policy in the workplace in response to any health or safety law, ordinance, rule, regulation, executive order, or other related directive.
Participate in any site visit by any governmental entity responsible for enforcing safety and health standards unless otherwise prohibited by law.
Review any report filed by the employer related to the health and safety of the workplace in a manner consistent with any provision of law.
Regularly schedule a meeting during work hours at least once a quarter that shall last no longer than two hours.

The HERO Act also has certain prohibitions, protections, and penalties:

Employers are prohibited from retaliating against employees for participating in the workplace safety committee or creation thereof.
Violations of this section are subject to the provisions of Labor Law Section 215 governing administrative actions by the Commissioner as well as permitting a private right of action by aggrieved employees.
If an employer retaliates against an employee in violation of this section of the Labor Law, the employer could face civil penalties imposed by the Commissioner ranging from $1,000 to $10,000, with increased fines for repeat violations.
The Commissioner could also impose liquidated damages and seek injunctive relief for violations of this section.
Employees who have been retaliated against for activities associated with the workplace committee are entitled to bring a civil action seeking injunctive relief, liquidated damages, costs, and attorneys’ fees.

The new law does not diminish rights under collective bargaining agreements but permits the parties to a contract to waive the requirements of this plan, provided the waiver explicitly references the law in the agreement.

Conclusion

We know that this is confusing to parse out. If you have any questions, do not hesitate to reach out. This memo from our counsel, Hinman Straub, provides more information on the HERO Act.

Contact: Diane Darbyshire, ddarbyshire@leadingageny.org, 518-867-8828