New York Governor Andrew Cuomo has signed into law legislation making amendments to certain provisions of the New York Health and Essential Rights Act (HERO Act). As detailed in our prior advisories, the HERO Act, which requires all employers to implement an airborne infectious disease exposure prevention plan and to permit employees to establish and administer a workplace safety committee, was signed by Governor Cuomo only after reaching an agreement with the legislature to make amendments to the bill.
The amendments extend the deadline for the New York State Department of Labor (NYDOL) to create and publish industry-specific model safety standards from June 4, 2021, to July 5, 2021. The amendments only require model standards for industries representing a significant portion of the workforce. Accordingly, the amendments require the NYDOL to also create and publish general model standards applicable to all worksites not included in the industry-specific model standards.
Moreover, the amendments now require employers to adopt a prevention plan within 30 days after the NYDOL model standards are published. Employers must then provide the prevention plan to employees within 30 days after its adoption, within 15 days after reopening following a period of closure due to airborne infectious disease, and upon hire for newly hired employees.
The amendments do not affect the November 1, 2021, date on which employers with at least 10 employees must begin permitting employees to establish and administer safety committees.
New Private Right of Action Remedies and Procedural Limitations
Most significantly, the amendments require an employee to provide the employer with 30 days' notice of any alleged violation before bringing a civil action unless the employee can allege with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith. Notably, an employee may not bring a civil action if the employer corrects the alleged violation. The amendments also require an employee to bring a civil action within six months from the date the employee had knowledge of the violation.
Additionally, the amendments eliminate a court's jurisdiction to award liquidated damages—thereby limiting an employee's available remedies to injunctive relief and an award of costs and reasonable attorneys' fees. The amendments further permit a court to award the employer costs and reasonable attorneys' fees assessed against the employee, the employee's attorney, or both, for any frivolous actions brought under the HERO Act.
Changes to Workplace Safety Committee Authority and Requirements
The amendments require employers to permit the establishment and administration of no more than one safety committee per worksite. Additionally, if an employer already has a safety committee that is otherwise consistent with the HERO Act's requirements, an additional safety committee is not required.
The amendments eliminate a safety committee's authority to review any workplace policy put in place by any provision of the workers' compensation law and, instead, permit review of workplace policies relating to occupational safety and health. Safety committees can still schedule meetings during work hours once a quarter. However, those meetings may not last more than two hours. The amendments also place a four-hour limit on the amount of time safety committee members are permitted to attend trainings related to safety committee functions.
The amendments update the definition of "employee" to cover individuals working for digital applications or platforms and limit the definition of "worksite" to locations over which an employer has the ability to exercise control. Specifically, "worksite" does not include telecommuting or telework sites unless the employer has the ability to exercise control over such sites.
Employer Action Items
The amendments require the NYDOL to publish model standards by July 5, 2021. In the meantime, New York employers should continue to comply with existing state and local reopening guidelines and the guidance provided on the NY Forward website.
Finally, Governor Cuomo recently announced that most remaining COVID-19 restrictions would be lifted and become optional when 70 percent of adults 18-years and older have received the first dose of the COVID-19 vaccine. As of the publishing of this advisory, 67.3 percent of New York's adult population has received at least one dose of the COVID-19 vaccine.
- New York HERO Act Mandates New COVID-19 Workplace Protections and Joint Labor-Management Workplace Safety Committees, 05.04.21
- New York Approves HERO Act With Technical Amendments, 05.10.21
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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