As detailed in our previous alert, last month Governor Cuomo signed into law the New York Health and Essential Rights Act (the “HERO Act”), which imposes workplace safety obligations on private sector employers in New York State. The HERO Act does not apply to municipalities or other government agencies. The Legislature has now passed amendments that clarify employers’ obligations under the HERO Act.
Significantly, the amendments provide employers with additional time to adopt an airborne infectious disease standard. Previously, the legislation required employers to adopt a plan by June 4, 2021. The amendments clarify that employers have 30 days from the time the New York State Department of Labor (“NYSDOL”) publishes model airborne infectious disease plans to adopt a plan. An employer must provide its plan to all employees within 30 days of adoption and within 15 days of reopening after closure because of an airborne infectious disease. The plan must also be provided to all newly hired employees at the time of their hire.
As of the date of this alert, the NYSDOL has still not published model airborne infectious disease standards. The amendments to the HERO Act direct the NYSDOL to publish such standards by July 5, 2021. They also direct the NYSDOL to publish model airborne infectious disease plans for industries that represent “a significant portion of the workforce, or those requiring distinct standards” and a general standard for employers not included in the specific industry guidance.
The HERO Act originally provided that an employer was required to publish a standard for each “work site”, defined broadly as “any physical space, including a vehicle, that has been designated as the location where work is performed.” The amendments clarify that a “work site” includes a location over which an employer “has the ability to exercise control” and does not include, for example, a telecommuting or telework site absent such control.
The amendments limit the remedies available to employees if an employer violates its airborne infectious disease standard. While an employee may seek injunctive relief, costs and attorneys’ fees, the amendments do not permit recovery of liquidated damages. Further, an employee may not file an action against an employer for violating its airborne infectious disease standard without first putting the employer on notice and allowing 30 days to cure the alleged problem, unless the employer has demonstrated an unwillingness to cure the violation.
The amendments also place limits on the workplace safety committees employees may form under the Act. Pursuant to new Labor Law Section 27-d, employers with ten or more employees must allow employees to establish workplace safety committees if requested. An employer which already has a committee in place that complies with the new statute is exempt from requiring the creation of additional committees. The authority of such committees has also been limited to the review of policies required by the HERO Act which relate to occupational safety and health.
While the original HERO Act required employers to provide members of a workplace safety committee with paid time off to attend training, the amendments limit paid training to four hours. They also limit the time employers must allow for members of a workplace safety committee to attend meetings to two hours per calendar quarter.
Employers must be on the lookout for the NYSDOL to issue its model airborne infectious disease plans, which will begin the timeline for the adoption of their plan. Employers should remember that their plan must be included in employee handbooks and provided to employees in English and in the language identified by each employee as their primary language.
Employers should also remember that they will have additional obligations under the HERO Act if they choose to adopt an alternative plan to the model standard issued by the NYSDOL. The amendments do not change the requirement that an employer’s adoption of an alternative to the plan issued by the NYSDOL requires either an agreement with a collective bargaining representative or, if employees are not represented by a union, through “meaningful participation of employees.”
As employers navigate these issues, our Firm’s labor and employment attorneys are standing by to provide legal advice.