What Employees Need to Know About the NY Hero Act and Workplace Safety

Shayla Colon, Albany Times Union

November 9, 2021


Employees who had to endure the painstaking process of filing a complaint to raise concerns about safety and health in the workplace now have a different avenue to bring up such issues.

The New York Health and Essential Rights Act (HERO Act) gave workers at companies with 10 or more employees the right to organize workplace safety committees as of Nov. 1.

“It’s workers that know how the work is actually getting done and if they’re able to have a seat at the table in terms of making some of those changes, or advocating for those workplace changes, that would improve the health and safety conditions for workers,” Rossana Coto-Batres, Director of the Northeast NY Coalition for Occupational Safety and Health (NYCOSH) said.

The approval for workplace committees comes alongside the act’s requirement that businesses also adopt the state’s airborne infectious disease exposure prevention plans and standards or devise their own in line with New York’s minimum requirements.

Company plans must detail how they would install social distancing measures, increased sanitation, improved ventilation and flexibility for workers’ protection. Staffs that choose to establish such committees will be able to review workplace safety and health policies with management and advocate for change in areas they deem necessary.

The DOL said it is “too premature” to know how many committees have started forming in the Capital Region.

Coto-Batres said the Hero Act provides “a lot more accountability” for safety standards. Although policy decisions are left to the employer, companies are obligated to respond to concerns workers raise.

Employers that fail to comply with the act could face a slew of consequences; they could be slammed with penalties costing $50 or more per day or up to $10,000 for not following a plan and workers can bring forth a “private right of action,” or lawsuit, to assert their legal rights, the DOL said.

A clause under the act also protects employees from retaliation for exercising their right to a safety group or inquiring about compliance with plans.

COVID-19 sheds light already existing concerns

The pandemic exacerbated and illuminated health and safety issues many workers faced before COVID-19 entered the picture, problems that disproportionately affected low-wage and workers of color in the service industry much harder, Coto-Batres explained.

While people of color make up 24 percent of the country’s population, the group comprises 40 percent of essential workers in health care, grocery, convenience and drug stores, a Health Affairs report showed.

Coto-Batres said low-wage workers, many of whom worked in essential roles, were vulnerable to several hazards including electrocution, work with chemicals, heavy machinery and exposure to extreme heat and cold. Coto-Batres also noted that scores of these workers were “not receiving adequate information” about infectious disease precautions from employers.

“In addition to not having adequate training, many of these workers faced barriers outside the workplace that made them more susceptible to being infected by the virus,” she added. “Having to take public transportation puts workers at a higher risk of exposure, considering the nature of the airborne disease.”

The Health Affairs article similarly determined that low-wage workers on the front lines found it more challenging to take time off or leave unsafe work conditions because of financial necessity. These folks went to work to stay afloat, despite what the conditions there were.

Addressing issues before committees were enacted

But workplace safety committees aren’t entirely novel either. Before the Hero Act, they were a tool mostly present in unionized settings.

Those who previously sought to modify workplace conditions, if no union was present, either had to take it up with an employer directly or file a complaint with the Occupational Safety and Health Administration (OSHA) or the DOL.
And filing a complaint with either can be a scrupulous process.

“That, we know, takes a while to do. It’s hard for people to be able to do that and gather all the documents, and then there has to be some type of investigation by OSHA to then ask the employer to make changes in the workplace,” Coto-Batres said.

OSHA faced criticism during the pandemic for its lack of a quick response to ensure workers were protected against COVID-19. The JAMA Network, a leading medical journal, for example, wrote that OSHA had not “fulfilled its responsibilities” during the crisis.

JAMA called on OSHA to implement an emergency temporary standard for employers to cultivate an infection control plan in Sept. 2020. New York was one of at least 12 other states to incorporate new protections for workers during this time, according to JAMA.