As previously reported, on May 5, 2021, Governor Cuomo signed the New York Health and Essential Rights Act (commonly referred to as NY HERO Act) into law. The NY HERO Act applies to private employers, and their employees, and attempts to combat concerns raised during the ongoing COVID-19 pandemic by mandating certain workplace health and safety measures for airborne infectious diseases. At the time the NY HERO Act was signed, the Governor noted that the final version would be subject to chapter amendments. As of June 11, 2021, those amendments have passed both the Assembly and Senate, and were signed by the Governor.
Among other things, the chapter 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. The changes are summarized below.
Timeline for Airborne Infectious Disease Exposure Prevention Standards and Plans
The NY HERO Act requires private employers to create and implement airborne infectious disease exposure prevention plans in their workplaces, and tasked the New York State Department of Labor (NYSDOL) with creating industry-specific model standards that will set forth the minimum requirements for preventing exposure to airborne infectious diseases in the workplace. As originally drafted, the NY HERO 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 NYSDOL standards or creating their own plan that equals or exceeds the NYSDOL’s standard) within thirty (30) days after the model standards relevant to the employer’s industry are published.
Limitations on Workplace Safety Committees
Part two of the NY HERO Act, which takes effect on November 1, 2021, addresses the creation of Workplace Safety Committees and states that employers with 10 or more employees must permit employees to establish and administer joint labor-management workplace safety committees. Under the amendments, it is clarified that 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 NY HERO Act requirements does not need to allow for the creation of another committee. The amendments also limit the scope of what policies the committee can review to only those involving occupational health and safety. Lastly, the amendments restrict committee meeting time to a maximum of two-hours per quarter, and a maximum of four hours of paid training for committee members.
Hurdles to NY HERO Act Litigation
The NY HERO Act provides that employees can bring a civil action seeking injunctive relief against their employer who is alleged to have violated the safety plan in a manner that creates a substantial probability that death or serious physical harm could result to the employee. The amendments make private litigation under the NY HERO 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 NY HERO Act violation.
Harter Secrest & Emery’s Labor and Employment attorneys are here to answer any questions you may have regarding the legislation. Please contact any Labor and Employment team member at 585.232.6500 or 716.853.1616.
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