New York State, which had some of the strongest COVID restrictions, is gradually reopening as Governor Andrew Cuomo continues to loosen emergency orders that kept many private businesses closed or curtailed from serving more customers. However, while the coronavirus may be dissipating, the measures to stop its spread, including masks, PPE, quarantines, and more, may be a persistent reality in the Empire State.
Earlier this month, the governor signed into law a bill called the New York Health and Essential Rights Act (“HERO”) that mandates every employer in the state, without exception, develop an “Airborne Infectious Disease Exposure Prevention Plan,” ostensibly for the purpose of protecting their employees from—you guessed it—airborne infectious disease.
This “plan” required of every business must comport to forthcoming state regulations for preventing diseases from the air. This means the state is putting more on private sector employers to mitigate the common cold or flu in the workplace and combat the next virulent virus.
Viruses are unlikely to cooperate, despite the best of intentions.
This new law directs the state bureaucracy to create a “model” airborne infectious disease prevention standard, “differentiated by industry.” These various industry models will dictate to businesses whether masks need to be worn, what personal protective equipment must be used, the degree of social distancing, frequency of employee health screenings, adequacy of indoor air flow and exhaust systems, directives to isolate and quarantine employees, requirements for cleaning common spaces, and “accessible workplace hand hygiene stations” combined with a mandate that “employers provide adequate break times for workers to use hand washing facilities as needed.”
It is as though coronavirus forever lurks.
There’s more. Every business with at least ten employees must allow workers to form a “workplace safety committee” comprised mostly of non-supervisory employees to monitor and assess their employer’s compliance with this new mandate to control the air.
If an employee believes the workplace air remains a problem, he or she doesn’t have to show up to work, yet can’t be fired under the “anti-retaliation” provision of the new law. The state can fine employers for violating the new air mandates and employers can be sued for the same.
This attempt by New York State to tighten workplace air standards and retain COVID mitigation requirements comes after the worst of the coronavirus has passed and vaccinations are widespread. Indeed, the new law will surely become a bonanza for trial lawyers and human resource directors. Regarding every other business – not so much.
The state’s business groups, including the Business Council, Federation of Independent Business, the state Restaurant Association and others strongly objected to this new law. The Business Council, which represents 2,300 employers in the state, argued that the state’s own data showed that private businesses accounted for only 5 percent of the COVID transmissions. Also, the added administrative burdens were unnecessary since the federal Occupational Safety and Health Administration (OSHA) workplace standards were sufficient.
For example, OSHA’s respiratory protection standard (here) already provides protection for workers when exposed to contact, droplet and airborne transmissible infectious agents. OSHA laws also protect “whistleblowers” that file complaints against employers for unsafe conditions, including workplace air quality.
Most of New York’s political class basically ignored employer concerns about a new layer of regulation based on the belief that workers needed more protection from airborne viruses. “It’s our turn to take care of them,” one legislator said.
Politicians in Congress, in New York, and throughout the country have spent trillions of dollars to care for families and workers in a myriad of ways during the pandemic by providing the federal Paycheck Protection Program, higher unemployment benefits and much else.
This latest New York attempt to outlaw cold and flu season begs the question: Does anyone believe these new measures and added costs will stop a virus? All the existing laws and emergency measures could not spare hundreds of thousands of COVID deaths and millions more people becoming infected in the last year, nor would this law have mattered, pre-COVID. Viruses are ultimately preempted not by regulation, mask-wearing, and cleaner counters, but by vaccines.
As the pile-on continues against private-sector employers in the Empire State, it is workers themselves who have the most to lose from higher taxes and more costly regulation such as the airborne disease prevention measures just adopted. Not all businesses made to pay these higher costs have a secret vault of extra cash. They will raise prices, forego employee raises, impose layoffs, or transfer operations (i.e., jobs) to friendlier business climates in other states or overseas. This is not theoretical; it’s been happening in New York, California, and other states, and will continue.
Too much caring from legislators is a risk for workers, since well-intentioned laws cannot repeal the laws of employer mathematics or the science of viral infections. Rather, this “HERO” Act may prevent a return to normalcy for many in New York State. It remains to be seen whether other states impose these expensive and superfluous mandates on the private sector.