Last week, both houses of the state legislature approved the New York Health and Essentials Rights Act, also known as the HERO Act.
Were this to become law, it would require the Departments of Labor and Health to implement standards to prevent occupational exposure to airborne infectious disease. The Act dictates that such regulations must include protocols on testing, personal protective equipment, social distancing, hand hygiene, disinfection, and engineering controls.
This begs the question: Where have these lawmakers been?
They must have they been hiding at home for the entire pandemic because had they gone out into their communities and met with their constituents they would have gotten a feel for how the private sector, under public sector guidance, is battling coronavirus.
For the past 14 months, retailers, restaurants, factories, and farms have been doing all those things called out in the Act, using and, in many cases, augmenting the detailed workplace rules developed by Governor Cuomo’s administration very early in the crisis.
Being totally oblivious to current workplace protections is highly unlikely so it might just be that those in the legislative chambers were suffering from jealousy knowing that the Governor and employers were successful in keeping Covid at bay in workplaces without their input. They want the spotlight. Their careers depend on it.
So, along those lines, while the HERO acronym was used to identify frontline and essential workers as heroes, it also likely insinuated that the legislators are heroes, too, because they protected the workers by making workplaces safe.
And, not to be outdone, those who developed the bill, led by Senator Michael Gianaris, added a couple of nuances to virus management that don’t bode well for the future: Permanency and legal action.
Though supposedly intended to fight coronavirus, the bill opens the door for the protocols in use now to be used indefinitely. It doesn’t discuss Covid singularly; instead, it identifies airborne infectious disease as “a highly-contagious communicable disease by the commissioner of health that presents a serious risk of harm to the public health.”
That means that once we’ve nipped Covid in the bud you could potentially see masks and social distancing deployed for 3 to 4 months of every year because influenza, in the eye of the beholder, could be designated as harmful to public health. After all, the 5 flu seasons prior to the Covid pandemic averaged 34.4 million cases, just under a half million hospitalizations, and 36,000 deaths in the United States.
What was once believed to be temporary measures could be the new norm.
As if that’s not transformative enough, consider how the HERO Act would totally change how workplace safety is managed.
For as long as most of us have been working, specific protections have been afforded to employees and employers alike. If something is amiss with safety, workers and businesses talk about it -- if that doesn’t work out the Department of Labor and/or the Occupational Safety and Health Administration get involved. Similarly, the workers compensation system has existed to ensure equitable or just settlements between parties.
You can throw that away with the HERO Act. It allows employees to forgo those outlets and go right to the courts if the person alleges that the employer violated the airborne infectious disease exposure prevention plan “in a manner that creates a substantial probability that death or serious physical harm could result from a condition which exists.” So, for fear of coronavirus or the flu, if someone feels threatened by a system, coworker, or customer, they can sue the employer for up to $20,000 under this legislation and have their lawyer’s fees covered by that company if victorious (meaning industrious lawyers could charge astronomical fees).
It’s not coincidental that a good number of state legislators are lawyers because this will lead to some significant economic activity for their partners and peers. I can just hear the radio and television ads now: “Down with Covid? Out with the flu? We will make your employer pay!”
It’s also not coincidental that government is protected by the HERO Act. The legislators know it will be burdensome and lead to a bevy of lawsuits. So, the bill specifically excludes the state, public authorities, and any other governmental agency or instrumentality. If all workplaces must be safe and offer recourse as necessary, shouldn’t it be that what’s good for the goose is good for the gander?
There’s little that’s heroic about the HERO Act.
That’s why I encourage the Governor -- the last line of dense with bad legislation -- to veto the bill.
Since March of 2020, he, his administration, and every one of us who owns or manages a business have gone to great lengths to protect workers.
We can’t let attention-seekers come to the Covid fray 14 months too late, dismissing all those efforts, and re-inventing the wheel, badly.
From the 26 April 2021 Greater Niagara Newspapers and Batavia Daily News
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