This blog has been updated to reflect new announcements regarding the NY HERO Act. The original blog was published on April 27.
As the economy across the country continues to recover from the COVID-19 pandemic, the New York State Legislature is working to implement new employment protections. On April 21st, 2021, portions of the NY HERO Act were signed, implementing new workplace health and safety protections to prevent occupational exposure to airborne infectious diseases.
In addition, the legislature is also working to implement two additional bills–one which would ban “no-rehire clauses” and “no-poach agreements.” Brown Kwon & Lam explains what this means for New York employees.
What is the NY HERO Act?
According to the New York State Senate, “The NY HERO Act, or the New York Health and Essential Rights Act, would require the Departments of Labor and Health to implement enforceable minimum standards for workplace safety. The regulations must include protocols on testing, PPE, social distancing, hand hygiene, disinfection, and engineering controls. Workers would also be given a direct role in monitoring and reporting violations through workplace health and safety committees and employees would be protected from retaliation for utilizing their rights under the law.”
Other elements of the Act include:
- Airborne Infectious Disease Workplace Safety Standard: The law establishes minimum requirements for preventing the spread of airborne infectious diseases in the workplace, divided into segments of employee health screenings, face coverings, personal protective equipment, social distancing, and cleaning and disinfecting protocols.
- Non-Retaliation: Retaliating against employees for reporting violations against safety standards, reporting concerns of exposure to such diseases, and/or for refusing to work where there is a good faith belief that the workplace exposes employees to an unreasonable risk of exposure is prohibited.
- Penalties: Non-compliant employers can face penalties of at least $50 per day for failing to adopt a disease prevention plan, and face fines of $1,000 – $10,000 for failing to comply with such plans.
- Private Right of Action: Employees have a right to bring forth legal action against non-compliant employers. Employees may be awarded attorneys’ fees and costs and liquidated damages up to $20,000 unless the employer demonstrates good faith attempts to comply with established standards.
- Creation of Workplace Safety Committees: Employers must allow employees to form a joint labor-management workplace safety committee that is permitted to raise workplace health and safety concerns, review employer workplace safety policies, participate in government site visits related to safety standards, and attend committee meetings and trainings related to workplace health and safety standards.
In addition to the HERO Act, New York State Legislature is also working to enact two additional bills, Bill S766 and Bill S562.
Prohibition of No-Rehire Clauses and No-Poach Ban
The Prohibition of No-Rehire Clause, Bill S766, is currently pending before the full State Senate and would prohibit employers from including clauses in settlement agreements that prevent employees from applying for, accepting, or engaging in future employment with the employer, or any related entities.
Should the bill go into effect, any agreement containing a rehire clause will be unenforceable except for the employer being bound by obligations to provide full compensation/severance pay for the employee.
Further, Bill S562, also known as the End Employer Collusion Act, prohibits agreements between franchisors and franchisees that restrict entities from hiring the current or former employees of their franchisor or other franchisees. In addition, any employee denied employment would be able to pursue compensatory damages, punitive damages, and attorneys’ fees.
With these changes occurring in New York employment law, employers must be mindful and review current employment contracts and policies to ensure that employees’ rights are being protected. Should they fail to abide, employees need to know, Brown Kwon & Lam is on their side.
Templated Employment Policies For Prevention, Airborne Infection Notice
On July 6, the New York State Department of Labor (NYSDOL) announced that under the HERO Act, employers must adopt minimum standards via template policies to protect employees from future airborne infectious disease outbreaks.
This includes both a General Standard and a Model Airborne Infectious Disease Exposure Prevention Plan. In addition, the NYSDOL published industry-specific guidelines. This includes templated policies for agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail.
Under the General Standard, employers must establish a written exposure prevention plan. Under the Model Airborne Infectious Disease Exposure Prevention Plan, they can select a templated option. Further, employers that wish to develop their own prevention plan can do so. However, it must meet the following criteria:
- Consider and incorporate controls applicable to the worksite.
- Adopt an alternative plan under an agreement with the collective bargaining representative.
These plans must be made available to employees in their preferred language, must be available to all employees upon request, must be posted in a prominent location at the physical worksite, included in the employee handbook and it must be reviewed by the employer to the employees.
New York Worker Safety: Brown Kwon & Lam
As changes occur in the workplace, New York employees need to know that Brown Kwon & Lam is here to protect in their employee rights-related litigation. Contact our firm today for a free consultation.