As we previously discussed, on May 5, 2021, Governor Cuomo signed the NY Hero Act (the Act) into law, codifying health and safety protocols in response to the COVID-19 pandemic. On June 7, 2021, the New York State Legislature passed amendments (the Amendments) to the Act to address certain ambiguities, in particular regarding the logistics of complying with the Act’s terms. If the Amendments are signed by Governor Cuomo, as is expected, they will push back the effective date of the majority of provisions of the Act from June 4 to July 5, 2021, with the exception of the workplace safety committee provision, which will take effect November 1, 2021.
Timeline for implementation of model safety standards
The Amendments provide a more concrete timeline for compliance with the Act. The Act requires that the New York Department of Labor (DOL), in consultation with the New York Department of Health, publish model safety standards for specific industries by July 5, 2021. Within 30 days after the standards are published, employers must either adopt the model standard for their particular industry or create a plan that meets or exceeds the model standards. Moreover, employers must provide a copy of the standards to their employees within 30 days of adoption of the plan – and within 15 days of reopening post-closure due to an airborne infectious disease – and immediately to all employees hired thereafter.
Workplace safety committees
The Act grants employees the right to establish workplace safety committees. The Amendments confirm that an employer need not permit employees to establish an additional committee if the employer has a workplace safety committee already in place that is otherwise consistent with the requirements of the Act.
The Amendments also clarify that the types of employer policies that would be available for review by workplace safety committees under the Act are confined to those regarding occupational safety and health.
The Amendments update the definition of a “covered employee” to include individuals who are working for “digital applications or platforms.” Similarly, the Amendments define “worksite” to cover only physical space where work is performed “over which an employer has the ability to exercise control.” Notably, this definition explicitly excludes telecommuting or telework sites, unless the employer is able to exercise control over the particular site.
The Act grants a private right of action to employees to file suit against employers for a violation of the Act. However, the Amendments require employees to give 30 days’ notice to employers before filing suit so that employers have an opportunity to cure the violation. An employee need not provide this notice if they allege with particularity that their employer has demonstrated a bad-faith unwillingness to cure the alleged violation.
The Amendments also eliminate the provision of the Act that previously allowed courts the authority to award payment of liquidated damages of up to US$20,000 unless the employer was able to provide good-faith grounds to believe that the health and safety measures in place were in compliance. The Amendments also strike the provision allowing parties to seek sanctions if an action, defense, counterclaim, or crossclaim was found meritless and undertaken for the purposes of harassment or malicious injury. Moreover, the Amendments allow employers to seek attorneys’ fees and costs for frivolous suits brought by employees.
While the Amendments have not yet been signed into law, New York employers should review their existing COVID-19 prevention plans and prepare for potential changes to comply with the safety standards of the Hero Act as amended. Employers should also continue to monitor the New York DOL for publication of the model safety standards. While the DOL has thus far failed to announce these standards by the deadline required by the unamended Hero Act, they could be published at any point between now and July 5.
For more information about the NY Hero Act or other requirements for New York employers, please contact one of the authors of this post or the Hogan Lovells lawyer with whom you work.
*Soo Bin Ahn, a Summer Associate in the New York office, contributed to this blog post.