HERO Act

Here we are in January, 2022, and frustratingly, there is no ONE right answer to this question.[1]  Between OSHA, CDC, WHO, and NYSDOH, together with state-wide and local Executive Orders and states of emergency, the answer to this question is a big, tangled web.

That said, there are THREE things I can say for certain, and they do answer this question:

1.  Regardless of what Emergency Order, law, or regulation is in effect, libraries and museums that are operating in any way should be doing so per a written and routinely updated Safety Plan.[2]

2.  Regardless of what Emergency Order, law, or regulation is in effect, libraries and museums operating under a Safety Plan that involves use of PPE and sanitization supplies should provide that equipment.[3]  Libraries relying on social distancing should continue to demarcate areas where it must be maintained.

3.  Regardless of what Emergency Order, law, or regulation is in effect, libraries and museums operating under a written Safety Plan that involves employer-required testing must provide those tests.[4]

Again: while different laws, regulations, and orders create these three obligations, I can say that they remain.

After that, I can only say: when updating Safety Plans (which should either be done, or ruled out, monthly, and ad hoc as guidance changes), libraries should confirm their obligations with either their lawyer or their local health department.

For libraries looking for a model, a good place to start is the HERO Act template found at  https://dol.ny.gov/system/files/documents/2021/09/p765-ny-hero-act-model-airborne-infectious-disease-exposure-prevention-plan-09-21_0.pdf. [NOTE: This link was confirmed as no longer active and removed on 02/25/2022  as part of the routine review of "Ask the Lawyer" materials.]  For municipal libraries that operate largely in conjunction with their municipal government (sharing HR policies, hazard response plans, etc.), it might be appropriate to look to their municipality's mandated[5] "Public Health Emergency Operations Plan."

I realize this doesn't eliminate the need to swim in the alphabet soup of authorities offering different, and sometimes divergent, guidance.  But by relying on your local health department to confirm obligations, hopefully a library can focus more energy on its mission to serve its community...while also demonstrably living up to its duty to safeguard its workforce.

[1] I can supply lots of answers, just not a one-size-fits all one.  Whether it's OSHA,  the NY HERO ACT, or currently  suspended federal mandates, 

[2] While different laws and regulations will govern the written plan, this is true for both private and quasi-governmental entities.

[3] While different laws and regulations will govern this obligation, this is true for both private and quasi-governmental entities.

[4] Examples of "employer-required testing" are:  random tests of the workforce, required routine tests for those not vaccinated, and any  other required testing built into an  Employer's Safety Plan.  Tests required by CDC, NYDOH, and local health department statements, such as the current recommendation by  the CDC for fully vaccinated, asymptomatic people to test 5-7 days after a known exposure, are not "employer-required."

[5] By New York Public Health Law Section 27-c.

The letters in the "NY HERO Act" stand for "Health and Essential Rights."[1]

What "essential rights" does it protect? 

• Section one of the HERO Act amends the New York Labor Law to create an "airborne infectious disease standard" covering all private employers.  The standard requires many things that will sound familiar: health checks, sanitization practices, and other preventative measure when there is a declared risk of airborne disease.
• Section two of the HERO Act amends the New York Labor Law to create joint employer-employee "workplace health and safety committees" (where there are 10 or more employees), so workers can collaborate and be involved in safety initiatives.

The new laws are activated only when an "infectious disease" is declared by the NY Commissioner of Health.  This means that right now, while the law is in effect, but no disease is designated, there is no need to have an active plan...but entities have to be ready to spring into action.[2]

Which brings us to the question: What types of libraries must comply?

We'll tackle the easy part first: without question, association libraries, which are private education corporations, must comply. 

For non-association libraries ("public" libraries), the language of the Act is much less clear, since the Act specifically exempts "...the state, any political subdivision of the state, a public authority, or any other governmental agency or instrumentality."

That sounds simple, right?  They should be exempt.  After all, libraries are considered, in some contexts, nigh-governmental entities.

But as many know, a public library's status as "governmental" ebbs and flows.

Here are just two recent examples:

Example #1: 2020 brought an interesting development when, after months of anxious curiosity, the NY Forward "powers that be" confirmed that public libraries were always considered to be exempt from the Executive Orders shutting down private businesses (and instead, were to follow the mandates governing local municipalities).  So: a governmental entity.

Example #2: A noteworthy new case[3] from NY's second-highest court has found that for purposes of the Prevailing Wage Act (Section 230 of the NY Labor Law), a public library is NOT "the state, any of its political subdivisions, a public benefit corporation, a public authority or commission or special purpose district board appointed pursuant to law, and a board of education."[4]  In other works:  not a governmental entity.

So, when it comes to this new law, I can't point to any definite authority either way; just because one part of the Labor Law excludes libraries, doesn't mean another does.  And certainly, we have no case law yet.  That said, if I HAD to pick, I would err on the side of caution and say that public libraries, which are education corporations with their own governance structures (just as the Court commented in "Executive Cleaning"), have to comply with the HERO Act.

Since the stakes are high for non-compliance, any public library that decides the HERO Act doesn't apply to them (and that's fine to reach a different conclusion; I am not omniscient, nor do I have a crystal ball) should:

1) Get that opinion, in writing, from an attorney retained to give advice to that library specifically, and considering its unique position under the law;

AND

2) Confirm the library is in compliance with New York Labor Law 27-a, which covers workplace safety in "the state, any political subdivision of the state, a public authority or any other governmental agency or instrumentality thereof."

The bottom line on this: when it comes to occupational safety, a public library can't fall into a hole between the mandates governing public and private entities: it either has to follow the rules of a "governmental instrumentality" employing people as government employees (and giving them all the protections government employees get under the law) OR it is following the rules of a private education corporation (and giving them all the protections private employees get under the law).

Since the HERO Act is really about taking all the protocols the State of New York developed in response to COVID, and ensuring they are on hand and ready for the next pandemic,[5] a library can't go wrong by having "an exposure prevention plan available, upon request, to all employees, employee representatives, collective bargaining representatives, independent contractors, the department of labor, and the department of health."[6]  By making a clear decision about what safety rules apply to your library, and developing a plan to follow them, you can not only comply with the law, but show that the library is working to keep employees safe.

Thank you for an important question.

[1] What about the "O?"  I double-checked the bills in both the State Senate and Assembly and apparently, it's just a bonus letter (I guess the "HER" act would imply only women get clean air).

[2] The NYS Department of Labor, as of July 12, 2021, states: "Currently, while employers must adopt plans as required by the law, as of the date of this writing no designation has been made and plans are not required to be in effect."

[3]  (Matter of Exec. Cleaning Servs. Corp. v NY State Dept. of Labor, 193 AD3d 13 [3d Dept 2021])

[4] Contrast this with the definition of who’s in/excluded from the HERO Act: "'Employer' shall mean any person, entity, business, corporation, partnership, limited liability company, or association employing, hiring, or paying for the labor of any individual in any occupation, industry, trade, business, or service. The term shall not include the state, any political subdivision of the state, a public authority, or any other governmental agency or instrumentality."

[5] I know, my stomach turned a bit when I typed the phrase "next pandemic."  But no point putting our heads in the sand.

[6] From the requirements summarized in the NYS Department of Health guidance here: https://dol.ny.gov/system/files/documents/2021/07/p764-the-airborne-infectious-disease-exposure-prevention-standard-v4.pdf.