Last month, we reported on New York’s passage of the so-called HERO Act, a landmark law that imposes a novel, sweeping overhaul of the State’s workplace health and safety laws. Although the HERO Act was set to take effect on June 4, the State on June 11 amended the law, including to delay its effective date until July 5. The critical changes to the HERO Act are as follows:

  • Updated deadline to adopt a prevention plan – Under the amendment, the New York State Department of Labor (NYSDOL) has until July 5, 2021 to promulgate industry-specific workplace health and safety standards for preventing exposure to airborne infectious diseases, with which all New York employers are required to comply. (The amendment also specifies that the NYSDOL must develop separate standards for (i) industries representing a significant portion of the workforce, or those with unique characteristics requiring distinct standards, as well as (ii) all worksites that are not included in the specific industry standards.)

The amendment further clarifies that, once the NYSDOL publishes the model standards, employers will have 30 days to adopt their own airborne infectious disease exposure prevention plan. Employers can still either directly adopt the model plan or can adopt a plan that meets or exceeds the model plan’s minimum requirements.

  • Updated deadline to provide employees with the prevention plan – The amendment provides that an employer’s airborne infectious disease exposure prevention plan must be provided to existing workers within 30 days after the employer’s establishment of the plan, and, thereafter, to new hires upon joining. Additionally, if there is ever a future period of closure due to an airborne infectious disease, the plan must yet again must be provided to all workers – this time within 15 days after reopening following the closure.
  • Modified remedies – The amendment modifies the recoverable remedies under the HERO Act in two significant ways. First, it eliminates an employee’s right to recover liquidated damages. And second, it allows employers to recover costs and reasonable attorneys’ fees if an employee files a frivolous lawsuit.
  • Opportunity to cure – Perhaps most important for the business community, the amendment provides for a notice and cure period before an employee can bring a claim under the HERO Act. Specifically, unless an employee alleges with particularity that their “employer has demonstrated an unwillingness to cure a violation in bad faith,” employees who perceive workplace health and safety defects in violation of the HERO Act must provide their employer with notice – of at least 30 days – and an opportunity to cure the perceived defect before commencing a civil action.  If an employer timely cures the perceived defect, the employee’s claim is moot.
  • Impact on remote worksites – Importantly for businesses with remote workers, the amendment clarifies that an airborne infectious disease exposure plan is not required to be adopted for telecommuting or telework sites unless the business has the ability to exercise control of the site.
  • Workplace safety committee clarification – The amendment provides additional clarity on the role of the joint labor-management workplace safety committees that the HERO Act authorizes. Among other things, the amendment clarifies that such committees may only review workplace policies or plans that are put into place pursuant to the HERO Act.
  • Statute of limitations clarified – The amendment provides employees with a six-month statute of limitations to file claims, measured from the date the employee had knowledge of the alleged violation.

Once the model plan and general standards are published by the NYSDOL, New York employers should take immediate steps to prepare compliant airborne infectious disease exposure prevention plans, in line with the model general standards. In addition, employers should ensure that they have a mechanism with which they can circulate their prevention plan to their employees when the plan is adopted, there is a closure related to an airborne infectious disease, and after hiring a new employee.

If you have any questions or concerns about the HERO Act or how it affects your company, Reed Smith’s experienced Labor & Employment Group is ready to speak with you.