FROM: Ostroff Associates

DATE: November 17, 2021

RE: Department of Labor Hearing on NY HERO Act Regulations

Summary: Labor representatives who testified asked that the NY HERO Act standards include face
covering mandates, clear ventilation standards, and industry specific standards or model plans.
Additionally, they asked that DOL implement enforcement measures to ensure employers are
implementing and following their workplace safety plans. The National Federation of Independent
Business (NFIB), however, testified that the one-size fits all approach unfairly burdens small
business owners, and that HVAC system upgrades were cost prohibitive.

Jonathan Rosen, Rosen & Associates, LLC

• Improvements are needed to the NY HERO Act legislation and regulations, and should be
based on the available scientific and medical evidence.
• There is an urgent need for effective workplace standards for COVID-19 as the state sees
increased hospitalizations and deaths due to the Delta variant. There was an average of 37
deaths per week in September alone.
• There is no logical basis for having different standards for private and public places of work.
• A cornerstone of an effective program is risk assessment. If the risk is not assessed at a
specific workplace, then the correct controls to protect employees will not be in place.
• Part of the risk assessment should be ventilation, which the standards need much more
detail on.
• Training is effective in changing employer and worker behavior.
• Effective enforcement is critical for any workplace safety and health standard. DOL needs
funding for staff and a unit dedicated to this.

Jake Kest, Alliance for a Greater New York

• The NY HERO Act falls short.
o Face coverings should be mandatory during outbreaks to prevent spread.
o Use of ventilation and maximization of outside air is crucial.
o No workplace is the same, and yet the industry plans are nearly identical and that
does not meet the intention of the law. The plans should have the specificity of the
NY Forward guidelines.

Richard Blum, Legal Aid Society

• There are deficiencies in the regulation that make it noncompliant with the legislation.

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 • There needs to be clear instructions on face coverings, and masks should be mandated
indoors. Distancing is not enough.
• The ventilation issue is huge.
• Partial barriers can be a bad idea because they interrupt airflow and cause a cumulation of
aerosols.
• There is a lack of industry specific standards, which does not comply with the legislation.
Model plans tell employees, not employers what to do.
• Having mandates is good for business; it is good for attracting workers and business, and
takes safety out of competition – it should not be a competitive advantage to endanger
people.

Charlene Obernauer, New York Committee for Occupational Safety and Health
• The legislation needs to meet the intent, and should be strong so all workers have the
protections they need.
• Employees must wear masks to the greatest extent possible – this should be obvious at this
point.
• Pools of funding should be created to train workers on the standard so they know about it
and can encourage their employer to follow it.
• There needs to be enforcement of the law. Industries that saw high rates of occupational
illness due to COVID-19 should be prioritized for enforcement.
• Despite being required by the NY HERO Act, ventilation it is not mentioned in the standard
and it should be. Mechanical ventilation is much more reliable than natural ventilation.

Lisa Zucker, New York Civil Liberties Union

• The regulations have caused confusion from the beginning, and it has been unclear what is a
requirement versus a suggestion or guidance.
• The regulations also fail to include standards that were in the legislation. For example, the
current regulations don’t even use the word “standard.”

Lisa Baum, New York State Nurses Association

• The NY HERO Act requires industry specific standards, instead model plans that were
practically identical were released, and these plans do not address enhanced ventilation.
• Cleaning surfaces and installing plexiglass offers little protection and a false sense of
security.
• The limited guidance on ventilation in the model plans is confusing and appears to have
been copied from another source. Useful guidance on enhanced ventilation does exist, but
the model plans provide little beneficial guidance.

Angela Castrillo-Vilches, Northeast New York Coalition for Occupational Safety & Health
• The NY HERO Act needs to be enhanced and strengthened.
• A one-size fits all approach will not work, and comprehensive and detailed protections are
needed. OSHA standards and workplace safety standards need to be enforced.
• Workers are fearful of exposure and the lack of protocols.
• The workplace safety committees are the most important piece of the legislation, as they
will allow employees to organize, and hold employers accountable.

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 • DOL must oversee the implementation of workplace safety committees and protect
employees from retaliation

Francine Streich, United Food and Commercial Workers Local 2013

• DOL needs to make sure there are specific plans for different types of workplaces.
• The standards should include mask mandates, as well as ventilation and enforcement
standards.
• Stronger protections are needed for home health aides.
• Workplace safety committees are essential, and Streich urges DOL to release information to
employers to assist with the creation of workplace safety committees.

Mahoma Lopez
• Lopez read the testimony of a colleague from the laundromat where they worked, who
detailed the lack of protections that were instituted by her employers, and how, when
employees tried to organize, she was fired.

Joseph Hogan, Association of General Contractors

• There is concern over the amount of control and the obligations and liabilities of general
contractors, especially when it comes to subcontractors.
• Hogan laid out a number of questions for DOL:
o What are the abilities of the subcontractors to press for better standards?
o What is the responsibility relative to multiple prime contractors? Under Wick’s Law,
there are at a minimum four prime contractors, so who becomes the controlling
contractor?
o What is the responsibility of the owners and designers who are outside the
contractual chain of command?
o What about sites where owners have not relinquished control of the site, if
maintenance is being done in a building and a contractor cannot control ventilation
or other measures?
o Indoor worksite vs. outdoor worksite – what defines an outdoor setting?

Greg Biryla, National Federation of Independent Business

• This legislation is flawed, particularly in how its application is triggered. “Highly
communicable disease that presents serious risk of harm to public health” is vague and has
no definition like a declared state of emergency would.
• One-size fits all plans are detrimental to small employers.
• Requirements to limit capacity, implement distancing, and have flexible work hours or sites
threaten small businesses’ ability to stay viable.
• Upgrades to HVAC systems are cost prohibitive.

Josh Kellermann, Retail, Wholesale and Department Store Union

• The NY HERO Act needs stronger enforcement. DOL needs new resources to hire
investigators to clear workplace safety complaints.
• Industry specific guidance is needed.

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 • Retail workers must engage indoors with the public, but the model plan doesn’t speak to
what the employer should require of the public. All people entering a retail building should
be required to wear face coverings.

Flandersia Jones, New York State Nurses Association

• The NY HERO Act has been challenging to implement. Employees continue to need to fight
for the regulations to be implemented.
• Mask requirements, ventilation standards and enforcement are needed.
• Industry specific standards are needed.

Carlos Encarnacion, NY Communities for Change

• The standards need to be stronger, there needs to be mandatory masking and ventilation.
• The NY HERO Act needs to be enforceable.

Jacklyn Lacey, Medical Anthropologist, American Museum of Natural History

• The NY HERO Act has not been implemented at the Museum of Natural History.
• Lacey and her colleagues have been struggling to lodge formal health and safety complaints.
• The Director of Health and Safety at the museum did communicate their safety plan on
September 3rd and stressed that there was no designation at the time, but did not follow up
when the designation was made on September 6th, and has refused to acknowledge that the
NY HERO Act is active.

Dr. Lupita Montoya, The Last Mile

• DOL should notify employers of best practices:
o Mechanical ventilation systems should utilize MERV-13 vents or better.
o Refresh rates should be set so that HVACs provide six air changes per hour.
o HVACs should be running one-two hours before employees arrive, and two-three
hours after they leave.
o Portable filters should be used when needed due to the workplace configuration.

Ashley Johnson, ACLU Women’s Rights Project

• The work of direct care workers requires close contact.
• Direct care workers are undervalued, undercompensated and unsupported by employers.
• The home care industry is more scattered and less regulated than residential care, and it is
more challenging to enforce workforce protections.
• COVID-19 has strained the already existing workforce shortage.
• The NY HERO Act is a good first step, but stronger standards and enforcement is needed.
• The plans are not tailored to working in someone else’s home during a pandemic, and
cannot adequately protect these workers.
• Johnson urged DOL to promulgate more industry specific standards.
• Funding is needed to ensure the NY HERO Act is enforced.

Bruce Hoskins, Small Business Owner

• The NY HERO Act is a good step, and he was able to use the template.

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• Many businesses are not complying with the NY HERO Act standard, which makes it harder
to explain to clients why there are still certain protections in place.
• Hoskins would like clarity on the metrics used to determine when the designation will be
lifted.