New York State Modifies Recently Enacted HERO Act

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New York's recently enacted Health & Essential Rights Act, otherwise called the HERO Act, has been modified.

As discussed in our earlier Alert, Governor Andrew Cuomo signed the HERO Act into law in early May. The law added two new provisions for covered employers: (1) mandatory adoption of infectious disease exposure prevention plans, and (2) the creation of "joint labor-management workplace safety committees."

In an amendment bill signed by the Governor earlier this month, employers have more time to implement prevention plans, and the scope of safety committees' authority has been modified.

Prevention Plan Adoption Required Thirty Days After DOL Publishes Model Plans

As a brief recap, the HERO Act requires covered employers to adopt "prevention plans" that will meet or exceed new infection prevention standards to be issued by the N.Y. Department of Labor (DOL). The prevention plans are not limited to COVID-19.

The amendment to the HERO Act pushes back and clarifies the date that employers will be required to put their prevention plans into place.

First, the law's effective date for prevention plans is pushed back from June 4th to July 5th. Second, and from a more practical standpoint: employers will have thirty days after the DOL publishes its model safety plans to either adopt the model safety plan, or, adopt a plan that equals or exceeds the minimum safeguards in the DOL's model plans.

The DOL has published a new website for HERO Act information. The DOL's model standards will presumably be available on the site once finalized.

Employers will have sixty days after adopting their plan (either the model plan or their own plan) to provide the written prevention plans to all employees. Going forward, employers will be required to provide the written plan to new employees upon hire.

Safety Committees' Duties Clarified

The original version of the HERO Act called for the creation of workplace safety committees made up of management and non-supervisory employees with substantial authority to oversee an employer's labor-related policies. The amendment does not change the law’s effective date; safety committee requirements will go into effect on November 1, 2021.

The amended HERO Act clarifies that authority. Safety committees will still be authorized to review employer policies, however, the policies must relate to occupational safety and health.

In addition, safety committees will not be required if the employer already has a workplace safety committee that is "otherwise consistent" with the requirements of the HERO Act. The amendment does not detail how an existing workplace committee would be deemed "consistent" with the new law's requirements.

The amendment also clarifies safety committee meetings and trainings. Employees serving on safety committees may schedule meetings during work hours once per quarter, so long as the meeting is not more than two hours long. Employees are also permitted to attend a maximum four-hour training on the function of the committee.

Other Items Changed by Amendment

Other items modified from the original HERO Act include:

  • The definition of "employee" expressly includes individuals "working for digital applications or platforms."
  • Employers are not responsible for an employee's "work site" if the employee is teleworking and the employer has no ability to control the site from where the employee is teleworking.
  • Only supervisory employees will be authorized to oversee compliance with their employer's infectious disease prevention plan.
  • Individuals suing under the law will not be able to recover liquidated damages.
  • Employers may recover costs and attorneys' fees in defense of any "frivolous" lawsuit brought under the HERO Act.

As the DOL starts to issue guidance on the HERO Act, employers should evaluate what changes they may need to make in their workplaces to comply with the Act.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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