By Mark F. Kluger and William H. Healey

A few weeks ago, Prince Andrew of Albany signed the HERO Act which imposes all kinds of return to work requirements on employers. If you don’t have NY employees, don’t change the channel yet, we’ve got goodies for you too. Remember, Hero is just what they call it in NY. We’ve got Subs for you Connecticut natives, Hoagies for our friends in PA, Grinders for our New England friends, and here in Jersey, we’re like Switzerland, cause we’ve got Heroes, Subs and Hoagies depending on the part of the state from which you hail.

For you New Yorkers, this Hero (Act) is a mouthful! The law, which becomes effective on June 4, establishes minimum return to work safety standards for all employers and industry specific ones too. Every employer will need a written plan adopting the minimum standards that must be provided to every employee, new and old, incorporated into employee handbooks and posted at each worksite. And get this: employers must permit employees to establish a joint labor-management workplace safety committee. How’s that for some hot peppers on top? 

The minimum standards require protocols for employee health screening, face coverings, accessible hand sanitizer/washing stations and mandatory time off to wash up, disinfection of high touch areas, social distancing guidelines and quarantine guidance. Employers must designate a supervisor to oversee compliance and the protocols must be verbally reviewed with existing and each new employee.

These workplace safety committees sound like trouble. Members can – during work hours – raise safety issues to which employers must respond, review policies, participate in site visits by DOL or OSHA, review safety reports submitted to government agencies by the employer (like OHSA logs), conduct quarterly meetings and attend safety trainings.

And what’s the most popular legal claim in the land these days? That’s right, “retaliation” claims (56% of all EEOC Charges this year). The HERO Act covers that too. Employers may not retaliate against an employee for (1) reporting violations of safety protocols; (2) refusing to work due to unreasonable exposure to airborne disease (loosely translated—it’s hot in here turn up the AC) and (3) joining the workplace safety committee—which not so loosely translated means, if they’re on the committee they can get away with anything otherwise, you’re retaliating because they’re a member. Sounds like a new form of COVID immunity! The NYS DOL is working on more detailed regs and has yet to publish the industry specific standards. You want a pickle with that?

Meanwhile, the CDC has said fully vaxed people can ditch their masks inside with no more 6 feet apart…. BUT… and there is always a “but,” only if not in conflict with federal, state and local rules and regs. We really hate to be the ones to tell you this, but that means OHSA has the final say in regard to the workplace. So far, crickets from them. That means what—that fully vaccinated people can frolic maskless, but not fully vaccinated employees? Even we would argue that employees are people too! So while we need to wait to see, it is hard to believe that after being best buds for a year now that OSHA is suddenly going to tell employers not to follow CDC.

As for the Garden State workplace, Murph threw us a curve, or more like a screwball, for those who just gotta believe. After the new CDC guidance, Murph issued Executive Order 241 which mostly relaxed outdoor masking requirements. But he snuck in there his most definitive statement about office masking since EO 192 from October 2020. It says:

4. As provided for in Executive Order No. 192 (2020), all individuals shall continue to wear face coverings in indoor workplaces, subject only to exceptions that have previously existed, such as when employees are at distanced workstations or in their own offices.

And we said, WTF? It seems others did too. Last week, there was a leak out of the Trenton hot air balloon. Several news outlets reported that effective May 28, NJ will lift the indoor mask mandate in keeping with CDC guidance. Just in time for Memorial Day because, as even some of you (us) Bennies know, down the shore everything’s alright.

While NJ may soon join the rest of the continental US on indoor masking, employers still have to figure out what to do with the vaccinated/unvaccinated divide. Public health officials may have intentionally exacerbated this divide in the workplace. Because while maybe the unvaxed don’t mind sitting in a separate section at the ballpark, they might mind being among the minority still wearing masks in the workplace. Maybe that’s the CDC Gods way of encouraging vaccination through the Scarlet Letter method. Either way, employers need to be prepared. 

We can help. You know where to find us, down the shore, where everything’s alright and up north too.

Happy Memorial Day!