The New York Health and Essential Rights Act (“HERO Act”) Amendments have been signed into law, which may come as welcome news to employers who might have been scrambling to understand and implement its requirements. As we previously reported, the HERO Act was enacted on May 5, 2021, mandating new workplace health and safety protections in response to the COVID-19 pandemic. Under the new law, two new sections were added to the New York Labor Law:
- Section one requires employers to implement an airborne infectious disease exposure prevention plan effective June 4, 2021;
- Section two requires employers to allow the formation of a joint labor-management workplace health and safety committee effective November 1, 2021.
At the time of signing the HERO Act into law, Governor Cuomo indicated that he had reached an agreement with the Legislature to amend the law in certain ways that might benefit businesses grappling with these changes. These amendments have now passed in both chambers of the Legislature, and Governor Cuomo signed them into law on June 14, 2021. The amendments include the following changes:
- The deadline for employers to adopt their airborne infectious disease exposure prevention plans has been delayed from June 4, 2021 to 30 days after DOL publishes the model plans. Once DOL publishes the model plans, employers will have 30 days to adopt their plans and another 30 days to distribute the plans to employees. Employers will also be required to distribute their adopted plans to newly hired employees at the time of hire and to all employees within 15 days after reopening after a period of closure due to airborne infectious disease.
- The worksites for which DOL must publish model plan(s), and for which employers must adopt plan(s), are now explicitly limited to those “over which an employer has the ability to exercise control.” This does not include telecommuting worksites.
- The amendments removed a provision that would have allowed employees to recover liquidated damages in a civil action of up to $20,000 for such a violation.
- The amendments require employees to provide their employer with 30 days’ notice and an opportunity to cure the violation before filing a civil action, unless the “employee alleges with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith.”
- The former law required the committees to review any policy in the workplace. The amendments narrow the committees’ role only requiring review of policies “put into place in the workplace … relating to occupational safety and health.”
- The duration of workplace safety committee meetings and trainings has been limited and “shall last no longer than two hours.”
Employers should continue to prepare to implement and distribute the health and safety plan adopted by the DOL and include joint labor-management workplace safety committees in decisions regarding workplace health and safety.