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NY: Update on HERO Act Amendments

As previously reported, New York passed the New York Health and Essential Rights Act (HERO Act). When the Governor signed the act, it was noted that the final version would be subject to amendments. As of June 11, 2021, those amendments have passed both the Assembly and Senate, and were signed by the Governor. The amendments:

  1. Adjust the timelines for employers to adopt and implement airborne infectious disease exposure prevention standards and plans;
  2. Limit the roles of workplace safety committees; and
  3. Modify the private cause of action available to employees.

A summary of these modifications is highlighted below.

Timeline for Implementation of Prevention Plan. As originally drafted, the Act would have required employers to adopt and implement plans by June 4, 2021. Under the amendments, employers will have to establish their plans (by either adopting the New York Department of Labor (DOL) standards or creating their own plan that meets and/or exceeds the DOL’s minimum standards) within 30 days of the model standards relevant to the employer’s industry being published. The model plans were published by the DOL on July 6, 2021, which means, employers must comply by August 5, 2021.

Employers will have 60 days after the publication of the state’s model plans (September 4, 2021) to provide the written prevention plans to all employees. In addition, employers will be required to provide the written plan to new employees upon hire.

Safety Committee Role. The Act requires that employers with 10 or more employees must comply with the requirement to create a joint labor-management workplace safety committee by November 1, 2021. The amendments clarify employers only need to permit one committee per worksite, and an employer with a workplace safety committee that is already in place and consistent with the Act’s requirements does not need to allow for the creation of another committee. Further, the amendments also limit the authority and decision making of the committee, in that, they can only review policies involving occupational health and safety. The amendment restricts committee meeting and training time to a maximum of two-hours per quarter, and a maximum of four hours of paid training.

Private Right of Action. The Act creates a private right of action for employees, who may bring a claim for injunctive relief against their employer for failing to comply with relevant health and safety standards. The amendments make private litigation under the act more difficult by imposing attorney fees awards for frivolous cases and generally prohibiting suit until the employee gives the employer 30 days’ notice to correct an alleged violation of the Act.

Other Noteworthy Changes. Other amendments to the Act include:

  • The definition of “employee” which expressly includes individuals “working for digital applications or platforms.”
  • Employers are not responsible for an employee’s “work site” if the employee is teleworking and the employer has no ability to control the site from where the employee is teleworking.
  • Only supervisory employees will be authorized to oversee compliance with their employer’s infectious disease prevention plan.
  • Individuals suing under the law will not be able to recover liquidated damages.

Next Steps for Employers

The DOL has published a new webpage for HERO Act information. The DOL’s Airborne Infectious Disease Exposure Prevention Standard and model airborne infection disease prevention plans, including some industry-specific templates, are available on the page. Employers should evaluate what changes they may need to make in their workplaces to comply with the Act, draft their specific plan and designate one or more supervisory employees to enforce compliance with the plan.  

HR Works will continue to monitor this legislation and provide updates as new information becomes available.

HR Works, headquartered in Upstate New York, is a human resource management outsourcing and consulting firm serving clients throughout the United States for over thirty years. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.