NY HERO Act Requirements Significantly Modified as Amendments Pass New York Legislature

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Sheppard Mullin Richter & Hampton LLP

[co-author: Myles Moran*]

This week, both houses of the New York state legislature passed a package of amendments (the “Amendments”) to the New York Health and Essential Rights Act (“HERO Act” or the “Act”) designed to clarify, modify, and delay implementation of certain provisions of the Act.

The HERO Act was signed by New York Governor Andrew Cuomo on May 5, 2021. The Act requires the New York State Department of Labor (“NYSDOL”) to create industry specific, enforceable workplace health and safety standards, and also imposes new health and safety obligations on employers. When he signed the HERO Act, Governor Cuomo simultaneously announced that he had reached an agreement with the state legislature to amend the Act by: (i) clarifying the timeline for both employers and the NYSDOL to develop and implement the required workplace standards; (ii) modifying the role of workplace safety committees; and (iii) limiting the potential for frivolous lawsuits.

A New Timeline for NYSDOL and Employers

The law initially required the NYSDOL to issue industry-specific model safety standards by June 4, 2021, and left employers with little guidance on what time, if any, they had to conform to these new standards.

The Amendments delay the deadline for the NYSDOL to publish its standards to July 5, 2021. The Amendments also provide a clear timeline for employers to adopt or create the safety protocols required by the HERO Act. The Amendments set the deadline for employers to adopt a disease prevention plan for 30 days after the NYSDOL’s creation of its model standards. Further, employers will have 60 days following the NYSDOL’s publication of its standards to provide their safety protocol to employees.

Modifications to Workplace Safety Committees

The Amendments also reduce the role of joint labor-management workplace safety committees, which the HERO Act requires employers to permit. For instance, the Amendments specify that employers are only required to permit one committee per worksite, while the Act as originally signed imposed no such restriction. In addition, the Amendments limit the purview of workplace safety committees to issues of occupational health and safety, where previously workplace safety committees would have been authorized to review employer policies relating to any provision of the New York Workers’ Compensation Law. The Amendments also reduce the amount of paid time available to workplace safety committee members for meetings and trainings. Specifically, committee meetings during working hours are limited to two hours, and committee trainings are limited to no more than four hours.

New Standards for Civil Litigation

Perhaps most importantly for employers, the Amendments modify the standards for a private right of action available to employees. First, the Amendments limit the availability of injunctive relief under the HERO Act to address claimed violations “that create [] a substantial probability that death or serious physical harm could result to the employee.” Second, the Amendments require employees to provide their employer with 30 days’ notice and an opportunity to cure a violation before bringing suit, unless the employee “alleges with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith.” Third, the Amendments preclude an employee from bringing suit if: (i) the employer corrects the alleged violation; or (ii) more than 6 months have passed from the date that the employee had knowledge of the alleged violation. Last, the Amendments remove the opportunity for liquidated damages and provide that a court may award costs and attorneys’ fees to the employer if the court finds that an employee’s claim is frivolous.

While these Amendments give New York employers some breathing room, employers should still prepare to comply with the HERO Act. Once the NYSDOL publishes model standards, employers still have a relatively short time to ensure compliance. Moreover, employers will need to determine how to incorporate workplace safety committees in their decision-making. We will continue to monitor this legislation and will provide updates regarding the HERO Act’s implementation as they become available.

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation. This article is not intended to be an unequivocal, one-size-fits-all guidance, but instead represents our interpretation of where applicable law currently and generally stands. This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

Sheppard Mullin is committed to providing employers with updated information regarding COVID-19 and its impact on the workplace.

*Myles Moran is a law clerk in the firm’s New York office.

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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