The New York HERO Act’s Proposed Amendments: What Employers Need to Know

On May 5, 2021, New York Governor Andrew Cuomo signed the New York Health and Essential Rights Act (NY HERO Act), which mandates extensive new workplace health and safety protections for all airborne infectious diseases. This action was quickly followed by the New York State Assembly’s May 10, 2021, and the New York State Senate’s May 14, 2021, introduction of identical bills to amend certain provisions of the NY HERO Act. If enacted, this legislation would modify and clarify several important aspects of the act. In the short term, the proposed amendments may create greater uncertainty for employers preparing to expand business activities and considering modifications to operational protocols in response to New York’s May 19, 2021, adoption of the updated guidance from the U.S. Centers for Disease Control and Prevention (CDC) with respect to fully-vaccinated individuals—especially because section 1 of the act, as currently drafted, takes effect on June 4, 2021. Some of the changes that would take effect if the proposed legislation were enacted are outlined below.

Delay in Effective Date of Section One

The proposed amendments provide that section 1 of the act will take effect on the 60th day after enactment, or July 5, 2021, rather than on June 4, 2021, as per the current act. The proposed amendments do not alter the effective date of section 2 of the act, which accordingly will take effect on November 1, 2021, even if the amendments are enacted.

Model Airborne Infectious Disease Exposure Prevention Standard

Clarification of the Definition of “Work Site”

The proposed amendments would narrow the currently expansive definition of “work site” to refer only to locations where work is performed “over which an employer has the ability to exercise control.” Consistent with this limitation, the proposed amendments would also specify that a “work site” would “not include a telecommuting or telework site unless the employer has the ability to exercise control of such a site.”

Clarification Concerning Model Airborne Infectious Disease Exposure Prevention Standards

The proposed amendments would also clarify the obligations of the commissioner of the New York State Department of Labor (NYS DOL), in consultation with the department of health, with respect to the publication of model standards regarding the prevention of airborne infectious disease exposure. Specifically, the amendments contemplate that customized standards would be established for “industries representing a significant portion of the workforce, or those with unique characteristics requiring distinct standards, as determined by the [NYS DOL] commissioner, in consultation with the commissioner of health.” For all other work sites, the NYS DOL commissioner would be directed to provide “a general model airborne infectious disease exposure prevention standard.” The essential components of the standards would remain unaffected by the proposed legislation and would continue to address topics such as health screenings, face coverings, personal protective equipment, hand hygiene, cleaning and disinfecting of shared equipment and common-use surfaces, and social distancing for employees and customers.

The proposed amendments also include language that would clarify the obligation of employers to assign “one or more supervisory employees to enforce compliance” with the plan and other applicable “federal, state, or local guidance related to avoidance of spreading an airborne infectious disease” by expressly adding that “[n]o individual who is not a supervisory employee shall have responsibility for overseeing compliance with the requirements” of the plan.

Extended Deadline to Establish an Airborne Infectious Disease Exposure Prevention Plan

As currently drafted, the act seemingly requires an employer to establish a plan that adopts the model standard, or to adopt “an alternative plan that equals or exceeds the minimum standards provided by the model standard,” no later than the effective date of the act. If enacted, the proposed legislation would establish a more realistic and workable time frame by allowing an employer to establish a plan “[w]ithin thirty days after the commissioner publishes the model general standard and the model standard relevant to the industry.”

Extended Deadline to Provide the Airborne Infectious Disease Exposure Prevention Plan to Employees

The proposed amendments would also incorporate more realistic time frames for employers to provide airborne infectious disease exposure prevention plans to employees. Specifically, an employer would have “within thirty days after adoption of the plan” to provide the plan to employees, or “within fifteen days after reopening after a period of closure due to airborne infectious disease” to provide the plan to employees. Thereafter, the employer would have to provide the plan to newly hired employees upon their hire.

The proposed legislation also would specify that the requirement to post the plan in a conspicuous location at the work site would not require posting in a vehicle that would otherwise qualify as a work site because it is designated as the location where work is to be performed.

Limitations on the Ability of Employees to Commence Civil Litigation

The proposed amendments would clarify that an “employee may bring a civil action seeking injunctive relief … against an employer alleged to have violated the airborne infectious disease exposure prevention plan in a manner that creates a substantial probability that death or serious physical harm could result to the employee.” The proposed amendments include several other provisions that collectively could limit the frequency with which civil actions would be commenced. For example, an employee would be required to give the employer at least 30 days’ notice of the alleged violation and could not thereafter commence an action if the employer had cured the alleged violation. Although the amendments state that the requirement to provide prior notice would be inapplicable if the “employee alleges with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith,” in all circumstances, an employee would be required to bring a civil action “within six months from the date the employee had knowledge of the violation alleged.”

The proposed amendments would also eliminate the ability of an employee to recover liquidated damages in a civil action, alter the standard for fee shifting, and would provide that only an employer may recover fees under specified circumstances. As currently drafted, the act provides for discretionary fee shifting against employers and in favor of employees if a court determines that an employer’s defense, counterclaim, or crossclaim is “completely without merit in law and undertaken primarily to harass or maliciously injure another.” By contrast, the amendments would eliminate the provision for an employee to recover fees, and allow a court to assess costs and attorneys’ fees “against the employee or against the attorney for the employee, or against both” if “at any time during the proceedings or upon judgment” the court determined the action to be frivolous.

Workplace Safety Committees

The proposed amendments, if enacted, also would establish additional limitations with respect to the workplace safety committees that would be required for private employers that employ 10 or more employees. Perhaps most importantly, the amendments would specify “that an employer that already has a workplace safety committee that is otherwise consistent with the requirements” of the act … shall be exempted from creating an additional safety committee,” and the amendments would also specify that employers would not be required to permit “more than one committee per worksite.”

In addition, the proposed amendments would clarify that the workplace safety committees would be authorized to raise issues relating to any policy put in place pursuant to the provisions of the act relating to occupational safety and health, but would eliminate language that also would have authorized the committee to review policies relating to “any provision of the workers’ compensation law.”

Although a workplace safety committee would remain authorized to schedule a meeting during work hours at least once each quarter, the amendments would specify that such meetings “shall last no longer than two hours.” Additionally, the proposed amendments would specify that the training that safety committee designees would be permitted to attend without loss of pay could not exceed four hours.

Next Steps for New York State Employers

As New York State businesses implement operational changes based upon revisions in occupancy limits that took effect in May 2021, and in response to the state’s May 19, 2021, adoption of the CDC’s guidance for fully-vaccinated individuals, New York employers may want to consider the following measures pending enactment of these amendments to the NY HERO Act:

• reviewing and, if necessary, updating the existing New York Forward Safety Plan to the extent that modification or clarification is warranted based upon the New York reopening guidance that became effective on May 19, 2021;
• posting the current safety plan in visible and prominent locations within each work site;
• distributing the current safety plan to employees and communicating to employees the importance of complying with the plan’s provisions and advising of potential consequences for noncompliance;
• designating supervisory employees who are responsible for enforcing compliance with the safety plan, and notifying employees of the identity of the designated supervisory employees;
• training designated supervisory employees and managerial employees, as well as human resources professionals, about the requirements of the act; and
• monitoring the status of the proposed legislation and reviewing materials once published by the NYS DOL to ensure compliance with the act’s model standard.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.