On May 5, 2021, Governor Cuomo signed the New York Health and Essential Rights Act (“NY HERO Act”), a first-of-its kind law designed to protect against the spread of airborne infectious diseases in the workplace.  But his signing statement promised amendments to correct various deficiencies in the Act.  Despite the forthcoming amendments, certain provisions take effect immediately and employers should begin creating or revising workplace safety policies to come into compliance.

NY Hero Act Summary

As previously reported, the NY Hero Act requires the New York Department of Labor (“DOL”) to establish minimum protocols for preventing the spread of airborne infectious diseases in the workplace.  These standards, which will differentiate among industries, will require employers to conduct employee health screenings, provide face coverings and other PPE, enforce social distancing, and institute cleaning and disinfecting protocols. 

In light of Governor Cuomo’s signature, the deadline for the DOL to issue the industry-specific standards is June 4, 2021.  Employers will not be required to establish their own disease prevention plan until the DOL issues its standards. 

Other provisions of the Act, however, require employers to take certain actions without waiting for the DOL.  Effective November 1, 2021, employers with at least 10 employees must permit their employees to create joint labor-management workplace safety committees, which in turn must be allowed to raise workplace health and safety concerns, review employer workplace safety policies, participate in government site visits relating to workplace health and safety standards, and attend committee meetings and trainings related to workplace health and safety standards.

In addition, the Act bans retaliation against employees for exercising their rights under the Act, authorizes the DOL to assess penalties for non-compliance, and grants employees a private right of action seeking injunctive relief against an employer for failing to comply with the above provisions of the law.  These provisions also take effect on June 4, 2021.

Promised Amendments

Although he signed the current iteration of the Act, Governor Cuomo simultaneously announced that he had reached an agreement with State legislators to substantively amend the law, specifically to:

  • include more specific instructions and timelines for the DOL and employers to enact these safety standards;
  • provide an opportunity for employers to immediately cure violations; and
  • limit litigation to situations where employers are “acting in bad faith and failing to cure deficiencies.” 

These potential revisions, all of which appear designed to ease the compliance burden on employers, may have arisen because of widespread criticism of the Act by the business community following its passage in April.  However, enactment of these amendments is not guaranteed, and no bill to amend the Act has yet been introduced in the State Senate or Assembly.

Employers Need to Take Action Now

While awaiting these amendments, and potentially legal challenges to the validity of certain portions of the Act, employers should be mindful of the provisions of the Act that will go into effect on June 4 or November 1, and should begin working with counsel to develop compliant policies and procedures. 

Seyfarth will continue to monitor developments and provide updates when available.

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