New York State Expands Guidance for Employers to Notify Current and Former Workers of Potential 9/11 Benefits

Quick Hits

• Employers that had workers in the areas of New York City impacted by the September 11th attacks may be required to notify those workers of two federal victim compensation funds.
• The new regulations seek to address the lack of awareness among many individuals who were exposed to harmful conditions following the September 11th attacks that they may be eligible for benefits.

On November 7, 2024, the New York State Department of Economic Development published proposed regulations related to the 9/11 Notice Act that would require businesses to take reasonable efforts to notify current and former employees who worked near the World Trade Center during and in the months after the September 11thattacks about the September 11th Victim Compensation Fund and the World Trade Center Health Program.

The proposed regulation comes after Governor Kathy Hochul announced a new awareness campaign on the 9/11 Notice Act. The state has published a toolkit with instructions and information for businesses to notify current and former employees about the federal victim compensation funds, which have paid out more than $14 billion.

The 9/11 Notice Act, which was signed on September 11, 2023, seeks to enhance awareness among 9/11 victims, including office, restaurant, and retail workers, about their eligibility for compensation. According to a sponsor memo included in the legislation, while 80 percent of eligible first responders have applied for benefits, less than 8 percent of office and retail workers exposed to hazards from the attacks have sought compensation.  

Proposed Empire State 9/11 Notice Program Regulations

The proposed regulations clarify that the “The Empire State 9/11 Notice Program” would require businesses to provide notice “to the extent practicable” of potential resources and benefits to current and former employees who worked “in or in proximity to the New York City disaster area and/or the New York City exposure zone” at any time from September 11, 2001, to July 31, 2002. (Emphasis added.)

According to the proposed regulations, such notifications would be required to “be made by email, text, electronic message system, postal mail, or facsimile.” Further, businesses would be required to retain duplicate copies of such notifications for “not less than three years.”

Based on the materials in the toolkit, it appears the state is urging, though not expressly requiring, employers to publish notices on social media accounts, in addition to requiring them to make reasonable efforts to reach out to former employees who may be eligible for benefits.

Affected Areas

An estimated 400,000 individuals were exposed to toxic contaminants, the risk of injury, or otherwise directly impacted by the attacks and recovery, according to the U.S. Centers for Disease Control and Prevention (CDC). Exposure to the hazards from the attacks, notably the massive dust clouds that filled the air for blocks following the collapse of the World Trade Center Towers, has been linked with several long-term health conditions, such as cancer, asthma, and sleep apnea, according to the CDC.

Source: New York State government website https://www.ny.gov/programs/911-assistance-programs

The regulations provide further clarification on the applicable affected areas:

• “New York City disaster area” with respect to the World Trade Center Health Program, is defined as the area of Lower Manhattan south of Houston Street and any blocks of Brooklyn located within a 1.5-mile radius of the former World Trade Center site, which includes areas of Dumbo and Brooklyn Heights.
• “New York City exposure zone” with respect to the September 11th Victim Compensation Fund, is defined as the area of Lower Manhattan south of Canal Street and extending to Clinton Street and the East River, in addition to “any area related to or along the routes of debris removal, such as barges and the Fresh Kills landfill.”

Additionally, the 9/11 Notice Act uses the phrase “in proximity to” the affected zone but does not provide a clear definition of what is “in proximity.” The language could be interpreted to apply to employees who worked within a few blocks of the affected area, as well as, for example, employees in mid-town offices who may have traveled to the affected zone for meetings during the relevant time period. The final regulation may provide further guidance once published.

Next Steps

The 9/11 Notice Act is in effect, though it is silent on the time frame by which the notices must be sent. In the meantime, the Department of Economic Development is seeking public comment on the Empire State 9/11 Notice Program proposed regulations until December 30, 2024.

Employers may want to begin attempting to identify employees and former employees who may be entitled to notice and preparing such notices consistent with the toolkit materials provided by the state.

Obviously, it may be difficult for employers to identify or determine which current and former employees who worked in the affected areas of Lower Manhattan and Brooklyn from September 2001 through July 2002. Pending further clarification in the final regulations, employers may want to use reasonable efforts to review employment records to determine which employees or former employees are entitled to notice. Employers may also want to consider sending email and mail notices to those employees in addition to posting on their company intranet, in physical workplaces, and on social media. 

Ogletree Deakins’ New York office will continue to monitor developments and will provide updates on the New York blog.

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