As we previously reported, on May 5, 2021, New York Governor Andrew Cuomo signed the Health and Essential Rights Act (the “HERO Act” or “Act”) into law, permanently codifying COVID-19-related health and safety protocols. In a memorandum issued with the signing, Governor Cuomo announced that he had secured an agreement with the Legislature for amendments to the Act to address certain ambiguities and technicalities.

On May 14, 2021, State legislators introduced bills (S6768/A7477) (“Bills” or the “Amendments”) to address some of the Governor’s concerns. The Bills recently passed in both legislative houses. Governor Cuomo is expected to sign the Amendments into law shortly.

If signed into law by Governor Cuomo, the Amendments would give the New York Department of Labor (“NYSDOL”) until July 5, 2021 to create industry-specific model safety standards and to provide a clearer timeline as to when employers must implement the airborne infectious disease prevention plans required by the Act. The Amendments also would address an ambiguity we previously reported concerning the Act’s scope by expressly limiting the types of employer policies that workplace safety committees will be entitled to review to only those that concern occupational safety and health (and not all policies relating to any matter addressed by the New York State Labor Law).

Below is a summary of the Amendments to the Act contained in the Bills.

Airborne Infectious Disease Exposure Prevention Plan

The Amendments establish a clearer (and longer) timeline regarding when employers must implement their prevention plans, and when the NYSDOL must publish the model standard.

Specifically, under the Act, the NYSDOL is required to publish the model standard by June 4, 2021; however, it has yet to do so. The Amendments set a new deadline of July 5 2021 for the agency to publish the model standard. In addition, the Amendments require the NYSDOL to establish both a general model standard applicable to all worksites and industry-specific standards. The Amendments provide that the industry-specific standards will cover industries representing a significant portion of the workforce, or those with unique characteristics requiring distinct standards.

The Act did not provide a specific deadline for employers to implement their plans; the Amendments would clarify that employers must establish their plans within 30 days after the model standards are published and provide their plans to employees within 60 days after the model standards are published.

Workplace Safety Committees

The Act provides that workplace safety committees can review “any policy put in place in the workplace required by any provision of this chapter….” This broad language raised concerns over the potential breadth of the workplace safety committee’s purview. The Amendments, clarify that each such committee’s scope of review is limited to “any provision of this chapter relating to occupational safety and health,” explicitly precluding a reading that the committee would be empowered to review all policies related to any provision of the New York Labor Law.

The Amendments also make clear that there need be no more than one workplace safety committee per worksite, and that if an employer already has a workplace safety committee with responsibilities consistent with the requirements of the Act, the employer need not create an additional committee. How this will work with respect to worksites with multiple unions is not addressed in the Amendments and will likely await further guidance through rule-making or further amendment.

Private Causes of Action

The Amendments limit the instances in which employees can bring private causes of action against employers for alleged violations of the Act.

Of note, the Amendments include a provision requiring notice and opportunity to cure before suit can be filed.  Specifically, under the Amendments, before bringing suit an employee must (i) provide the employer with notice of the alleged violation, and (ii) wait at least 30 days after notice (except where the employee alleges with particularity that the employer is acting in bad faith in failing to cure the violation). The Amendments further provide that the employee may not bring the civil action if the employer corrects the alleged violation.

The Amendments establish a six-month statute of limitations from the date an employee has knowledge of an alleged violation for bringing a civil action. If a court finds that the action is frivolous, the Amendments would allow the court to award the employer costs and reasonable attorneys’ fees, which could be assessed against the plaintiff-employee, the employee’s attorney, or both.

Lastly, the Amendments repeal the provision in the Act that allows for the recovery of liquidated damages in a private cause of action.

We will provide an update as soon as further action occurs. In the meantime and inasmuch as enactment of the Amendments is anticipated shortly, New York employers may wish begin taking the steps suggested in our prior advisory to comply with the Act.

 *Christopher Shur, a Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this blog.

Footnotes

[1] As outlined in this Advisory, Governor Cuomo’s memorandum approving the HERO Act stated that he had secured an agreement with the New York Legislature to make technical changes to the Act. The specific changes contemplated in the memorandum are not yet available.

[2] The Act defines “work site” as “any physical space, including a vehicle, that has been designated as the location where work is performed. The term shall include employer-provided housing and employer-provided transportation at, to, or from the work site but shall not include the residence of the employer or employee unless such residence has been provided by the employer and is used as the primary place of work or such residence is provided by an employer covered under the provisions of article nineteen-A of this chapter [concerning farm workers]” (emphasis added).

[3] "Airborne infectious disease" means “any infectious viral, bacterial or fungal disease that is transmissible through the air in the form of aerosol particles or droplets and is designated a highly contagious communicable disease by the commissioner of health that presents a serious risk of harm to the public health.”