6-17-2021 Client Alert -NYS HERO ACT AMENDMENTS

Posted on June 17, 2021

In follow-up to our recent Client Alert [Click here to read the 5/10 HERO ACT alert.], the New York State Legislature recently passed the highly anticipated amendments to the New York Health and Essential Rights Act (the "HERO Act"). The amendments addressed a number of critical issues that were widely viewed by business leaders as rendering the original version of the Act onerous, costly and punitive to employers. The Act, as amended, was signed by the Governor on Friday.

Here is a summary of the most critical amendments:

1. EFFECTIVE DATE: The Act originally required the New York State Department of Labor to issue industry-specific model standards by June 4, 2021 and provided that the effective date for employers to comply with the Act was likewise June 4th, giving businesses no time to act. Under the amendments, the deadline for the State to publish the model standards has been extended until July 5, 2021. In addition, employers will have 30 days from July 5, 2021 (or until August 4, 2021) to adopt or create their required safety plans. Moreover, employers will have an additional 30 days (or until September 3, 2021) to publish their safety plans to employees. Thereafter, employers will be obligated to provide their safety plans to all employees within 15 days of re-opening post closure due to an airborne infectious disease, as well as to all employees at the time of their hire.

2. WORKPLACE SAFETY COMMITTEES: The amendments reduce the role of company workplace safety committees. While employers must still permit employees to create such a committee, they are only required to permit one committee per worksite (and do not need to allow formation of a new safety committee where one already exists). Additionally, the scope of the workplace safety committee's role is now limited by the amendments to reviewing issues only related to occupational health and safety. Further, committee meetings during work hours are limited to a maximum of 2 hours and committee trainings are limited to a maximum of 4 hours. The effective date for implementation of the workplace safety committees remains November 2, 2021.

3. LITIGATION: Notably, the amendments limit the availability of injunctive relief to apply only in those situations that "create a substantial probability that death or serious physical harm could result to the employee" and require employees to provide companies at least 30 days' notice and an opportunity to cure an alleged violation before commencing legal action unless the employee can show that the employer has "demonstrated an unwillingness to cure a violation in bad faith". In addition, employees are precluded from bringing a lawsuit against their employer if the employer corrects the alleged violation or more than 6 months have passed from the date the employee first had knowledge of the alleged violation. Finally, the amendments eliminated the liquidated damages provision in the original version of the Act and provide that an employer may receive an award of costs and attorneys' fees if the court finds than an employee's claim is frivolous.

Companies should keep an eye out for the model standards which will be issued by the Department of Labor between now and July 5th and be prepared to implement those standards, or their own stricter version of the standards, by August 4th. In addition, employers should ensure that they have updated their internal onboarding processes so that all new employees receive the standards at the time of hire.

Please contact a member of the Labor & Employment group with any questions.

Lorisa D. LaRocca