May 15, 2021

Volume XI, Number 135

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New York State Bill Mandating COVID-19 Safety Standards in the Workplace Provides Carve-out for Unionized Employers

As discussed in greater detail here, Governor Andrew Cuomo is poised to sign into law S.1034B/A.2681B, also referred to as the New York Health and Essential Rights Act, or the “Hero Act.”

The Hero Act has two main components.  First, the state Department of Labor, in consultation with the state Department of Health, shall create an airborne infectious disease safety standard, as well as a model airborne infectious disease exposure prevention plan, and employers either must adopt the plan and standards, or create standards that meet or exceed the model.  Second, employers with at least 10 employees must allow their employees to create joint labor-management workplace safety committees.

As health and safety issues are routinely negotiated between unionized employers and the employees’ collective bargaining representative, the Hero Act contains a CBA waiver provision, permitting employers and unions to explicitly agree to waive the requirements of the bill, as long as the waiver “explicitly reference[s]” the statute.  Employers should therefore keep this in mind if they are actively or imminently negotiating a successor collective bargaining agreement, and even if not, such waivers could be negotiated mid-term.

Employers who negotiate such waivers with their respective unions should be cognizant of the fact that they may be obligated to adopt certain health and safety prevention plans for their non-union employees, notwithstanding the waiver as to some of its employees.  Employers should also be aware of any other operative federal, state or other local health and safety guidance that may create additional obligations.

In addition, the bill also expressly provides that nothing therein “shall be deemed to diminish the rights, privileges, or remedies of any employee under any collective bargaining agreement.”  In other words, if a CBA provides for rights greater than prescribed by the bill, then the CBA rights and obligations continue to govern the parties’ relationship.

We will keep you posted as the bill is expected to be signed into law in the near future.  Once the Hero Act becomes law, the New York State Departments of Labor and Health presumably will begin to issue model plans on an industry-specific basis.  We will also monitor whether the bill is challenged in any forum, including potentially on federal preemption grounds.

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© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 112
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Paul Salvatore, Proskauer, New York, Real Estate Lawyer, Construction
Partner

Paul Salvatore is a member of Proskauer’s Executive Committee and former co-chair of its global Labor & Employment Law Department, named by The American Lawyer as one of the top U.S. practices and recipient of the Chambers USA 2012 Award for Excellence. He is widely recognized as a leading U.S. labor and employment lawyer in such publications as Chambers (Band 1), US Legal 500 (Leading Lawyer) and Superlawyers. In 2010, The National Law Journal selected Paul as one of "The Decade's Most Influential Lawyers" – one of only...

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Joshua Fox Labor & Employment Attorney Proskauer Rose
Associate

Joshua Fox is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. He represents a diverse range of clients, including professional sports leagues and teams, hotels, hospitals, and pipe line contractors, among many others, in collective bargaining, administration of their collective bargaining agreements, arbitrations and matters before the National Labor Relations Board.

In particular, Josh has extensive experience representing professional sports leagues, including Major League...

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Law Clerk

Jacob Tucker is a law clerk in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration and Employment Counseling & Training Groups.

212.969.3857
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