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) in law, authorizing the state labor commissioner to establish an occupational safety and health standard for COVID-19 exposures. Although 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 workers. local and state government employees.

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However, the Occupational Safety and Health Act 1970 allows states to enact laws where the Federal Occupational Safety and Health Administration (OSHA) does not have an existing standard (§18 ( at)). There is no current federal standard for COVID-19 or infectious diseases, but an Emergency Temporary Standard (ETS) is under regulatory review at the House’s Office of Information and Regulatory Affairs. Blanche (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 exams, face covers, personal protective equipment ( PPE), hand hygiene stations, regular cleaning and disinfection of frequently touched and shared surfaces. equipment, social distancing, compliance with isolation or quarantine orders, adequate air circulation and ventilation, and a designated supervisor responsible for the employer’s infectious disease exposure prevention plan, as well as anti-scaling protections.

The law also allows the state labor commissioner to impose civil penalties for employer violations, and employees can bring civil action for the violations. There is also a requirement for the creation of joint employee-employer committees for occupational safety.

“The state is still in the early stages of reviewing and implementing this law and we will provide you with an update when it becomes available,” said a spokesperson for the New York Department of Labor. York in an email.

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

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

According to OSHA procedures, a state must notify OSHA as soon as it becomes aware of a material change. States should record a state initiated change (SIC) in the OSHA State Plan Application (SPA) SIC log.

Last year, four plan states 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 guidance for employers on COVID-19 within 2 weeks and to consider establishing an ETS of here March 15. OIRA received the ETS text for regulatory review on April 26. .

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