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NY HERO Act Update

June 23, 2021

As we addressed in our previous newsletter article (see here), New York Governor Andrew Cuomo signed into law the New York Health and Essential Rights Act (the “NY HERO Act” or the “Act”) on May 5, 2021. Several amendments to the Act were signed by Governor Cuomo on June 11. This article will address the changes made by these amendments and the effect they will have on employers.

Model Safety Standards Effective Date

Originally, the Act required the New York State Department of Labor (“NYSDOL”) to issue model safety standards for specific industries within 30 days, making the effective date June 4, 2021. This date has been delayed to July 5, 2021, giving the NYSDOL an additional month to issue these standards. The Act also lacked clear guidelines for when employers had to comply with the new regulations. The amendments clarified that employers will need to adopt or create an Infectious Disease Prevention Plan (that addresses precautions such as health screenings, face coverings, ventilation, etc.) within 30 days of the NYSDOL issuing their model standards and will need to provide the new plan to their employees within 60 days.

Workplace Safety Committee Changes

Another change as a result of the amendments is a smaller role for joint labor-management workplace safety committees. The Act did not originally specify how many committees are required but it has now been made clear that employers are only required to allow one committee per worksite, although they are allowed to permit more. The role of these committees has also been reduced in that they are now limited to issues of occupational health and safety, while in the original Act, these committees were also authorized to review a wider range of employer policies under the New York Labor Law. Workplace safety committee members are now limited to two paid hours for committee meetings and four paid hours for committee trainings. If an employer already has a workplace safety committee that complies with the requirements set forth by the Act, the employer can keep that committee and does not need to create an additional one.

Civil Litigation Standards

The third modification was in the standards for a private right of action for employees. The availability for injunctive relief under the Act was limited to violations that may result in death or serious physical harm. Also, employees are now required to give their employer 30 days notice and “the opportunity to cure,” prior to bringing a lawsuit, unless the employer has already demonstrated that they are acting in bad faith in failing to cure the violation. Next, employees are prohibited from bringing a suit if the violation is corrected or more than six months have passed since the date they became aware of the violation. Finally, the opportunity to obtain liquidated damages has been removed and now employers may be awarded costs and attorneys’ fees if it is found that an employee’s claim was frivolous.

Conclusion

Although the amendments to the NY HERO Act provide more time and looser requirements for employers, it is still important to begin preparation for compliance. The NYSDOL will be releasing their model standards shortly and organizations should be ready to implement an Infectious Disease Prevention Plan shortly thereafter. Employers should also begin to consider how they will structure their joint labor-management committees, as they are still set to go into effect on November 1, 2021.

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