State COVID-19 Regulations Multiply as Fed. OSHA Declines to Adopt General Industry COVID-19 Regulations

Well over a year after the pandemic began, federal OSHA has declined to adopt a set of COVID-19 regulations for general industry. Just yesterday, federal OSHA announced that it had “completed” the rulemaking process for the COVID-19 emergency temporary standard, which will only apply to healthcare industry employers.  This long awaited rule is expected to be released later today.  While federal OSHA has been evaluating whether a COVID-19 is even necessary, several states have been aggressive in passing their own workplace safety and health rules related to COVID-19.  Most recently, New York State passed the New York Health and Essential Rights Act (HERO Act), which went into effect just last week on June 4, 2021.  New York State joins a number of states that have promulgated COVID-19 regulations, including California, Virginia, Oregon, Michigan, and, in the near future, Maryland.  In light of federal OSHA’s decision to adopt COVID-19 regulations solely related to the health care industry, several other states may take action to implement their own COVID-19 regulations.  New York State’s HERO Act, however, goes even one step further.  The HERO Act is not solely focused on COVID-19, it addresses any and all airborne infectious diseases. 

New York is also the first state in the country to require its Department of Labor to develop “industry-specific” health and safety standards for private sector employers to reduce the risk of airborne illnesses for employees (including but not limited to COVID-19).  New York employers should move quickly to adopt safety and health plans and revise employee handbooks to conform with the Act’s requirements.  Below is an overview of the key provisions of the Act.

Safety Plans

Under Section 1 of the HERO Act, all private employers, of any size, are required to create a written prevention plan of health and safety standards to protect employees from workplace exposure to airborne infectious diseases.  The New York State Department of Labor (NY DOL), in consultation with the Department of Health, was required to publish industry-specific model safety and health plan by June 4, 2021, however that deadline was not met.  As a condition to signing the act, Governor Cuomo secured an agreement with the New York State Legislature to make technical changes to the Act, which included providing the NY DOL and employers more specific instructions in developing and implementing the workplace standards.  Thus, the effective deadline is expected to be extended, but there has been no official announcement.  The NY DOL indicated that the model plan is currently being drafted, but there is no firm deadline on when that will be issued. 

However, the HERO Act does specifically outline what the model standard is required to address, which includes the following topics:

1. employee health screenings,
2. face coverings,
3. personal protective equipment,
4. workplace hygiene stations,
5. regular cleaning and disinfecting of shared equipment and surfaces,
6. compliance with quarantine guidelines in cases of exposure,
7. compliance with applicable engineering requirements, such as air flow and exhaust requirements,
8. compliance with local laws,
9. the appointment of supervisory employees to maintain enforcement of these new standards,
10. regular reviews of employer polices, and
11. social distancing.

Employers are required to either adopt the model plan or create their own plan, which meets or exceeds the minimum requirements issued by the NY DOL, and provide the plan to all current employees and to new hires upon hire.  Furthermore, employers are required to post a copy of the plan in a visible location in the workplace and add the plan to the employee handbook.  Employers that choose to create their own exposure prevention plans must develop such plans with their collective bargaining representatives if employees are represented by a union or, if not represented by a union, include meaningful participation from employees.

Civil Penalties and Private Right of Action

Employers may be subject to daily fines for instances of non-compliance with the Act.  Specifically, the NY DOL can fine employers $50 per day for failure to adopt a safety plan and $1,000 to $10,000 for failure to abide by the safety plan.  These fines may increase if the commissioner determines that an employer has violated the Act in the preceding six years.  Perhaps even more concerning, the HERO Act gives employees a private right of action for injunctive relief, attorneys’ fees (if successful), and payment of liquidated damages of no greater than $20,000, unless the employer proves a good faith basis to believe that the established health and safety measures were in compliance with the applicable airborne infectious disease standard.  In sum, it is imperative that employers act swiftly to comply with the Act’s requirements.

Workplace Safety Committee Requirement

Section 2 of the HERO Act requires private employers to permit employees to establish a joint employer-employee workplace safety committee composed of employee and employer designees, provided that at least two-thirds are nonsupervisory employees.  Non-supervisory employees must select the employee members.  Furthermore, employers must allow employees to attend training—without suffering a loss of pay—on the function of worker safety committees, rights established under this section, and an introduction to occupational safety and health.

The workplace safety committee and its members are authorized to perform certain tasks, including but not limited to:

• 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 any provision of this [Act] and any provision of the workers’ compensation law and provide feedback to such policy in a manner consistent with any provision of law.
• 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 in a manner consistent with any provision of 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.

Employers have time to implement compliant safety committees, as that requirement does not take effect until November 1, 2021. 

Going forward, New York employers should carefully review their existing COVID-19 plans and closely monitor the NY DOL industry-specific guidance and regulations that are expected to be issued in the near future.  Although New York employers are required to maintain a safety plan that complies with New York’s industry-specific Return to Work guidance, employer safety plans should be reviewed and revised to ensure that they address all of the topics above that must be included in employers safety plans under the HERO Act.  Employers should also discuss with those responsible for implementing the plan any necessary changes that need to be made to safety plans and ensuring that they are incorporated into employee handbooks. 

The Employment Law Group at Conn Maciel Carey LLP is well-versed in the Act’s requirements and can assist in drafting compliant safety plans, developing safety committees, and ensuring compliance with the HERO Act’s health and safety requirements.  Please do not hesitate to reach out to us with any questions.