New York Health and Essential Rights Act (the HERO Act)

Over the last seventeen months, people in New York and around the world have adjusted to a “new normal.” The enactment of the New York Health and Essential Rights Act, known as the HERO Act (hereafter “the Act”), codifies many of the requirements currently in effect by Executive Orders issued by Governor Cuomo during the pandemic and as part the New York reopening process. The Act creates permanent requirements for private sector employers[1] and protections for employees in the event of future outbreaks of airborne infectious diseases, further exemplifying how our world has changed because of this pandemic. The airborne infectious disease exposure prevention plans which are now required by law for private employers must go into effect when an airborne infectious disease is designated by the New York State Commissioner of Health. An airborne infectious disease is designated when it is a highly contagious communicable disease that presents a serious risk of harm to the public health. Employees also may form workplace safety committees because of this new legislation, as explained below.



The Act mandated the New York State Commissioner of Labor and the New York State Department of Health to create model airborne infectious disease exposure prevention standards to establish minimum requirements for preventing exposure to these diseases to protect the workforce and the public. A standard was created for all industries representing a significant portion of the workforce, or those industries with unique characteristics requiring distinct standards, as determined by the Commissioner of Labor, and the Commissioner of Health. The Commissioner of Labor also created a general model standard applicable to all work sites[2] not included in the specific industry standards (the “model standards”). The model standards and the model plan were published on the Department of Labor’s (“DOL”) website for the Act on July 7. (NY HERO Act | Department of Labor).[3]

The Commissioner of Labor may update these model standards so long as they are communicated to employers. The Act requires that employers establish a plan either by adopting the model plan or establishing a plan which meets or exceeds minimum standards established by the DOL and Department of Health (“DOH”). The plan must be disseminated amongst the employer’s workforce and creates posting requirements which are outlined below.

Finally, the Act requires employers to permit employees to establish and administer joint labor-management workplace safety committees, which have a broader purpose than performing tasks related to keeping workers safe from airborne infectious diseases. These committees have the power to review policies related to any health or safety law or rule under the New York Labor Law except for the Workers’ Compensation Law.[4]



We recommend that employers review the model standards and the model plan, and continue to follow federal, state, and local laws, rules, orders, and guidance, including CDC Guidance for Vaccinated Individuals. The DOL and the State’s Commissioner of Health have not designated an airborne infectious disease (separate from the State’s ongoing guidance on COVID-19) as a highly contagious communicable disease presenting a serious risk of harm to the public health.  However, employers must adopt plans under the Act, but the plans themselves are not required to be effective yet.

If your workforce is represented by a collective bargaining representative, you are required to adopt your own plan pursuant to an agreement with the collective bargaining representative of your employees.   The provisions of the Act involving the model standards may be waived by a collective bargaining agreement. For the waiver to be valid, it must explicitly state the section of the Act that is waived.

Employers are required to adopt either the State’s model plan or create their own plan meeting or exceeding the model standards within thirty (30) days after the Commissioner of Labor publishes both the model general standard and the model standard relevant to an employer’s industry. Because the model standards have been published, employers must adopt a plan by August 6, 2021.  

Businesses operating on July 5, 2021 must provide a written plan to all employees by September 5, 2021.   All plans must be provided in writing to every employee in the employee’s primary language within thirty (30) days after the employer’s adoption of the plan (as long as the Department of Labor publishes materials in that language).  The plan must then be distributed within fifteen (15) days after any reopening, distributed to all newly hired employees,  posted in a visible and prominent location in the work site, and included in the employer’s handbook (if one exists). 

The model standards consider the risks present at any work site customarily associated with each covered industry. They specify and distinguish the extent to which the provisions are applicable for different levels of airborne infectious disease exposure including whether a state of emergency has been declared due to an airborne infectious disease. The model standards note that any employee within the coverage of a temporary or permanent standard adopted by the Occupational Safety and Health Administration (OSHA) setting forth applicable standards regarding COVID-19 and/or airborne infectious agents and diseases is not covered by the model standards and must abide by the OSHA standard. 

The model standards and any employer created plan must include requirements for protective measures – many of which have become familiar with during the COVID-19 pandemic:

The model standards explicitly state that individuals who are not supervisors will not have any responsibility for overseeing compliance with the model standards. Any employer adopted plan must include anti-retaliation provisions reflecting employee rights to a workplace free of retaliation as further described below.



The State’s model standards and plan have additional requirements not codified in the Act such as when revisions need to be made to employer plans, when the plans must be reviewed, and the requirement that reviews be performed verbally. In addition, there are processes which must be followed to implement an employer’s plan when an airborne infectious disease is designated. Finally, there are record keeping and training requirements in the model plan.



The model standards and any employer adopted plan must provide that the employer cannot discriminate, retaliate, or take adverse action against employees if they engage in the following:

Penalties for non-compliance may include progressive fines ranging from fifty dollars ($50) to twenty thousand dollars ($20,000) based on the degree and severity of the employer’s violation of the Act. Fines may increase if there have been repeat violations within six years of previous violations. The Commissioner of Labor also has the authority to impose other appropriate relief, including enjoining the conduct of any person or employer for violations of the model standards.



Effective November 1, 2021, employers with ten or more employees must allow workers to form joint labor-management safety committees. Each workplace safety committee must have employee and employer designated members, provided at least two-thirds of the committee are non-supervisory employees. Employees cannot establish more than one committee per work site, and an employer who already has an Act-compliant workplace safety committee is exempt from creating an additional committee.

Employers cannot interfere with the selection of employees who serve on the committee or who serve as the workplace safety designee or with such employees’ performance of the duties authorized under this section.

The workplace safety committee is authorized to do the following:

Employers must allow safety committee designees to participate in training (which will last a maximum of four hours), without loss of pay, on the function of worker safety committees, rights established by the Act, and an introduction to occupational safety and health. Employees may not be discriminated or retaliated against for being members of the committee.     

We advise you to follow the above guidance for adopting and distributing your plan to your employees, even though these plans are not currently effective now.  If you choose to develop your own alternative plan, you must do so with the meaningful participation of employees (and their collective bargaining representative, as applicable). Should you choose to create your own plan rather than adopting the State’s model plan, please do not hesitate to contact us for any assistance you may require. The decision to adopt the model plan and industry specific guidelines is unique to you and your workplace.


Please contact your Clifton Budd & DeMaria, LLP attorney with any questions.



[1] The terms “employer” and “employee” are broadly defined. All private sector employers are covered under the law, regardless of size. This means that an individual who employs a cleaning person as their only employee must have a plan and distribute it. Public sector employers, employees and independent contractors of the State are not covered.

[2] A work site is defined broadly as “any physical space, including a vehicle that has been designated as the location where work is performed over which the employer has the ability to exercise control.” The term includes employer-provided housing and employer-provided transportation at, to, or from the work site. A work site only includes the residence of the employer or employee when this residence was employer provided and used as the primary place of work. The definition of “work site” also does not include a telecommuting or telework site unless the employer has the ability to exercise control of the work site.

[3] Industry specific standards and templates have also been posted to this website, which must be considered and incorporated in any employer plan. The current industries which have published templates are: Agriculture, Construction, Delivery Services, Domestic Workers, Emergency Response, Food Services, Manufacturing and Industry, Personal Services, Private Education, Private Transportation, and Retail. There does not appear to be a specific industry template for the Building Service Industry similar to the archived guidelines which were in effect specifically for the Building Services Industry for Offices, Real Estate and Buildings. We will be contacting the Department of Labor to determine whether one will be published and, if not, what industry template is recommended.

[4] The Department of Labor will promulgate rules and regulations about these committees, and we will update you when they are issued.

[5] For purposes of the Act, a supervisory employee is defined as “a person who has the authority to direct and control the work performance of other employees, or who has the managerial authority to take corrective action regarding the violation of the law, rules or regulations.”  This definition does not include any employee who is a member of a collective bargaining unit that primarily includes employees not otherwise deemed to be a supervisor or supervisory employee as defined by the Act. Therefore, it is likely that an employee could be a supervisor under the Act even if the employee is not a supervisor for the purposes of the National Labor Relations Act (NLRA).

[6] Employees who refuse to work must have previously notified the employer of their concerns regarding the employer’s failure to comply with the Act and the employer failed to cure or otherwise address those concerns or the employer must have had reason to know of these conditions and maintained them.  Employees have the right to bring civil lawsuits against their employer alleging that the employer violated its prevention plan in a manner that creates a substantial probability that death or serious physical harm could result to the employee from a work condition or practice in use by the employer at the work site. These actions are allowed unless the employer did not and could not, with the exercise of reasonable diligence, know of the presence of the violation. Prevailing employees may be awarded injunctive relief, costs, attorneys fees.