COVID-19, Regulatory Developments

New York HERO Act Authorizes Establishment of State COVID-19 Standard

On May 5, New York Governor Andrew Cuomo (D) signed the HERO Act (S.1034B/A.2681B) into law, authorizing the state’s labor commissioner to establish a workplace safety and health standard for COVID-19 exposures. While the law applies to all workplaces in the state, under current federal regulations (29 CFR 1952.24), New York is only authorized to create and enforce safety and health protections for local and state government employees.

New York state COVID-19

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However, the Occupational Safety and Health Act of 1970 allows states to enact laws where the federal Occupational Safety and Health Administration (OSHA) has no existing standard (§18(a)). There is no current federal COVID-19 or infectious disease standard, but an emergency temporary standard (ETS) is undergoing regulatory review at the White House Office of Information and Regulatory Affairs (OIRA).

The new state law requires the New York labor commissioner to establish an infectious disease exposure prevention standard that includes provisions for employee health screenings, face coverings, personal protective equipment (PPE), hand hygiene stations, regular cleaning and disinfection of frequently touched surfaces and shared equipment, social distancing, compliance with isolation or quarantine orders, proper air flow and ventilation, and a designated supervisor responsible for an employer’s infectious disease exposure prevention plan, as well as antiretaliation protections.

The law also allows the state labor commissioner to assess civil penalties for employer violations, and employees may seek civil action for violations. There also is a requirement for joint employee-employer workplace safety committees.

“The State is still in the beginning stages of review and implementation of this law and we will provide an update when one is available,” a spokesperson for the New York Department of Labor said in an e-mail.

New York is not one of the 22 states and territories with state plans approved by federal OSHA covering private sector workers’ safety. New York is one of six states and territories, along with Connecticut, Illinois, Maine, New Jersey, and the U.S. Virgin Islands, authorized by OSHA to regulate the health and safety of local and state government workers.

Federal OSHA oversees the administration of state plans and last updated its oversight procedures May 6, 2020. Many states adopt OSHA’s federal standards. States may establish their own standards, but state regulations must be at least as effective as federal standards.

Under OSHA’s procedures, a state must notify OSHA as soon as it becomes aware of a significant change. States must log a state-initiated change (SIC) in the SIC log in OSHA’s State Plan Application (SPA).

Four state plan states last year established ETSs for workplace COVID-19 exposures: California, Michigan, Oregon, and Virginia. Oregon and Virginia established permanent standards earlier this year.

On January 21, President Joe Biden issued an Executive Order (EO) directing OSHA to issue updated employer guidance for COVID-19 within 2 weeks and consider establishing an ETS by March 15. The OIRA received text of the ETS for regulatory reviews on April 26.