Legal Analysis of Gov. Hochul’s Enforcement of New York State’s HERO Act

New York State Governor Kathy Hochul recently signed a directive that requires businesses in New York State to implement specific workplace safety plans. This directive enforces regulations set forth in the New York Health and Essential Rights Act, also known as the HERO Act. The HERO Act was put in place in response to the COVID-19 pandemic.

WGRZ 2 On Your Side anchor Scott Levin recently interviewed attorney Barry N. Covert to provide legal analysis regarding enforcement of New York State’s HERO Act. During the interview, Mr. Covert discussed the potential implications the HERO Act will have on New York State businesses, the liability the HERO Act may create for employers, and the possibility of a legal challenge to the HERO Act.

Continuing reading for portions of Barry Covert’s comments and click the video below to watch the full interview with WGRZ’s Scott Levin.

What are the implications of Gov. Hochul’s announcement on local businesses?

BNC: It really codifies now what local businesses have been struggling. Which is, now that we have the CDC for months talking about vaccinations, the importance of vaccinations, wearing masks if you’re not vaccinated; but it was hard to really enforce it for local businesses. Now we’ve got the state codifying the requirement that local businesses have plans for vaccinations for workers who are not vaccinated, or are vaccinated, and how to handle those who are not vaccinated and require that they wear masks. But it requires that when there is some sort of an outburst of COVID, that there be a plan in place. It should be very helpful for businesses who now are going to have the support of the state and making certain that there are requirements that are put in place by those employers to make certain that the employees are either handling the vaccinations, or have vaccinations, or don’t have vaccinations but have plans in place.

For some of the smaller businesses that may not have the time or the employees to put together this plan; what does it say to them? Could they be in trouble by the government?

BNC: It could be a problem for the smaller businesses that don’t have plans in place, that if there are outbreaks, that they don’t have the plans to make certain that it doesn’t spread wider and could cause some liability for that employer. I think what is going to be important though, that they make sure that they follow whatever blue print is set up by other employers, that maybe fellow business members who know how to set this up and follow that. Because yes, it could increase their liability for not following that state’s requirements if in fact they didn’t put a plan in place.

So does this increase the liability for an employee to possibly sue an employer if there is a COVID outbreak where they work?

BNC: It could certainly increase the liability of employers who are who are being sued by employees. Now, generally that comes under the Workers’ Compensation laws, so you’re in that arena. But it could certainly increase the liability of employers for their employees or even customers who are now exposed because the employers knew at some date that there was COVID that was being airborne, passed around in their business. And now customers are suffering the consequences of that. So this could lead to some increased liability for employers.

Is this something businesses could challenge if they wanted to get together and do it as a group?

BNC: Yes, you would certainly think that businesses are going to challenge this, as they have with every COVID regulation, to determine if it’s a reasonable restriction. Whether it’s reasonable to expect that they put plans in place of this nature to make certain that they know what to do if there is an outbreak. But, you could certainly see the possibility of employers getting together and hiring some law firms to challenge the requirement to see whether it’s a constitutionally vested, whether the state is allowed to require employers to do this.