Jun 11, 2021 COVID-19 Guidance

New York State Legislature Amends the HERO Act

The New York State Legislature recently passed a bill amending several provisions of the recently enacted HERO Act (the “Act”). As we previously explained, Governor Cuomo signed the HERO Act into law May, establishing certain mandatory workplace protocols to prevent the spread of airborne infectious diseases, including COVID-19. These new amendments clarify a number of important details for employers in New York, as described below. Governor Cuomo is expected to sign the amendments into law shortly. Even if he delays, they will automatically become law unless he vetoes them within 10 days, which is unlikely.

Effective Date for Model Safety Protocols Extended

The most immediate change for employers is that the effective date of Section 1 of the HERO Act, which requires employers to adopt model safety protocols to prevent the spread of airborne infectious disease, has been extended (prior to the amendments, the effective date for this section was June 4, 2021).

More specifically, Section 1 of the Act requires the Commissioner of the New York State Department of Labor (“Commissioner”) to create and publish industry-specific model airborne disease exposure prevention standards for industries which (1) represent a significant portion of the workforce, or (2) have unique characteristics that require distinct standards. The Commissioner will also publish a general model that applies to worksites that do not fall into either of the two categories noted above.

Under the amendments, employers must adopt an infectious disease exposure plan within 30 days after the Commissioner publishes the applicable models. The Commissioner has been instructed to issue the model plan by July 5, 2021. The plan employers adopt may be either the Commissioner’s model or an alternative plan that satisfies the minimum requirements set forth in the model.

Next, employers must distribute their plan to employees within 30 days after its adoption. Moving forward, employers will be required to provide their safety plan to newly hired employees and to all employees within 15 days after reopening after “a period of closure due to airborne infections disease.” (Note that the effective date for the other Section of the Act, regarding the establishment of workplace safety committees, discussed below, has not been extended and is still scheduled to go into effect on November 1, 2021.)

Limitations on Employee Lawsuits

Employers will be pleased to learn that the amendments limit potential exposure to civil liability in several important ways.

First, the amendments require an employee to give notice of an alleged violation prior to commencing a lawsuit. As a result, an employee may only sue after giving the employer 30 days’ notice of the alleged violation, “except where an employee alleges with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith.” Further, during the 30-day notice period, employers have an opportunity to cure the alleged violation and an employee may not sue if the situation is corrected during the notice period.

Second, the amendments eliminate the ability of courts to impose liquidated damages against employers who lack a good faith basis for believing they had complied with the law.

Finally, employers may seek attorneys’ fees and costs if a lawsuit under the Act is deemed to be “frivolous.”

Expanded Definition of Employee and Worksite

The amendments also alter who the Act applies to while restricting where it applies.

The definition of “employee” now includes those individuals who work for digital applications and platforms. As a result, employers in this sphere should review and understand the Act’s requirements.

More importantly, the amendments limit an employer’s “worksite” to those places “over which an employer has the ability to exercise control.” Further, the amendments specifically note that the term does not include “a telecommuting or telework site unless the employer has the ability to exercise control of such site.”

Workplace Safety Committees

Section 2 of the Act requires that covered employers permit employees to establish and administer a joint labor-management workplace safety committee. The amendments clarify that employers who already have workplace safety committees that are “otherwise consistent with the requirements” of the Act need not establish an additional committee. In addition, the amendments specify that committee meetings, which must take place during working hours at least once each quarter, “shall last no longer than two hours,” and the trainings that committee members will be allowed to attend without loss of pay shall not exceed four hours.

Next Steps

Employers should pay close attention to the Commissioner’s publication of model safety protocols, which, as noted above, we anticipate will be released in early July, and perhaps earlier. After that, employers should look to adopt either the Commissioner’s model protocols or protocols that comply with the Commissioner’s minimum standards. Lastly, employers should plan to distribute a finalized plan to employees. Employees may have questions about the plan, and it is possible that New York State will issue future guidance addressing frequently asked questions.

Please feel free to reach out to any of our attorneys if you have any questions or would like our assistance in complying with the HERO Act.

NOTICE: Material provided on this website has been prepared by Kauff McGuire & Margolis LLP solely for general informational purposes, and it is not intended to and does not constitute legal advice. Material provided on the website is not privileged and does not create an attorney-client relationship