As discussed in our previous advisory, the New York Legislature passed the New York Health and Essential Rights Act (HERO Act), requiring all New York employers to implement certain health and safety standards and to adopt a prevention plan to address the spread of COVID-19 and other airborne infectious diseases in the workplace. Governor Cuomo signed the legislation on May 5, 2021, after reaching an agreement with the legislature to make amendments to the bill.

The amended language is not yet available. However, according to the memo approving the bill, Governor Cuomo secured an agreement with the legislature to make technical changes to the bill, including giving the New York Department of Labor (NYDOL) and employers "more specific instructions in developing and implementing the workplace standards, including a clear timeline and providing for an immediate requirement for employers to cure violations in order to better protect the safety of workers and limit lengthy court litigation to those private rights of action, in limited circumstances where employers are acting in bad faith and failing to cure deficiencies."

The HERO Act takes effect on June 4, 2021.

Amendments to Workplace Standards and Private Right of Action Provisions

The HERO Act requires the NYDOL, in consultation with the New York Department of Health, to create industry-specific model airborne infectious disease exposure prevention standards (our previous advisory discusses these in more detail). Employers are required to implement a health and safety plan either by adopting the NYDOL model standard relevant to their industry or by establishing an alternative plan that meets or exceeds the NYDOL standards. The amended HERO Act will include specific instructions for developing and implementing workplace standards, including a clear timeline.

The HERO Act also creates a private right of action for employees to bring claims for injunctive relief against their employers for failing to comply with applicable workplace health and safety standards. Courts may award up to $20,000 in damages and attorneys' fees to a prevailing plaintiff under the HERO Act, unless the employer proves a good faith basis to believe that the established health and safety measures were in compliance with the applicable airborne infectious disease standard. Under the amended HERO Act, employers will be required to immediately cure any violations to their workplace health and safety standards. Specifically, the amended HERO Act limits litigation to those private rights of action where employers are acting in bad faith and failing to cure deficiencies.

The HERO Act's provisions related to anti-retaliation, refusals to work, and joint labor-management workplace safety committees remain unchanged. The HERO Act's Joint Labor-Management Workplace Safety Committee provision takes effect on November 1, 2021 (i.e., 180 days after it was signed into law).

Employers are encouraged to consult counsel with any questions regarding the HERO Act.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

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