As we shared in a previous blog, New York Gov. Andrew Cuomo signed the Health and Essential Rights Act (HERO Act) into law on May 5, 2021. Shortly thereafter, the New York legislature amended the HERO Act to clarify several questions that were left unanswered in the previous version of the law. On June 11, 2021, Gov. Cuomo signed the amended HERO Act into law.

More time to adopt airborne infectious disease exposure prevention plans

Previously, Section 1 of the HERO Act directed the New York Department of Labor (DOL) to create and publish model airborne infectious disease exposure prevention plans by June 4, 2021.  The amended HERO Act extends the DOL’s deadline to publish model plans to July 5, 2021.

Furthermore, the original HERO Act left open the question of when New York employers must adopt their own airborne infectious disease prevention plans. The amendments provide that employers must adopt airborne infectious disease prevention plans no later than 30 after the DOL publishes its model plans. Employers will then have 30 days to distribute their plans to their employees. Employers must also redistribute their plans to all employees within 15 days of reopening after a closure due to an airborne infectious disease outbreak. Finally, an employer must distribute its plan to a new employee upon hiring the employee.

Opportunity to cure violations

The HERO Act allows an employee to bring a civil action seeking injunctive relief against an employer who failed to comply with the airborne infectious disease exposure prevention plan in a manner that creates a substantial probability of death or serious physical harm to the employee. The amendments provide employers with an opportunity to cure violations prior to an employee bringing a civil action. Under the amended HERO Act, an employee may not bring a civil action against their employer for violation of a workplace safety plan until 30 days after giving the employer notice of the alleged violation. Employees may bring a civil action only if the employer fails to cure the violation. The amended law also provides for a six-month statute of limitations for claims under the act, which begins to run when the employee has knowledge of the violation.

Joint labor-management workplace safety committees

Section 2 of the HERO Act requires New York employers with at least 10 employees to permit employees to establish and administer joint labor-management workplace safety committees. The amended law clarifies that employers are not required to allow more than one committee per worksite. In addition, employers that already have workplace safety committees that comply with the requirements of the HERO Act are not required to create additional committees.

The new version of the HERO Act also places limits on the amount of work time employees may spend on activities related to workplace safety committees. The amendments clarify that each quarterly workplace safety committee meeting shall last no more than two hours. In addition, while employers are still required to allow safety committee designees to attend a training program without loss of pay, the amendments provide that such training may last no longer than four hours.

Takeaways

New York employers should check the DOL’s website for model safety plans. Employers should prepare to issue airborne infectious disease prevention plans within 30 days of the DOL’s publication of model safety plans and distribute the plans to their employees.

Photo of Abbie Thederahn Abbie Thederahn

As an associate, Abbie assists Porter Wright’s labor and employment lawyers with all aspects of labor and employment law, including regulatory matters as well as litigation.

As a law student, Abbie gained experience as a legal extern with the Ohio Attorney General’s office…

As an associate, Abbie assists Porter Wright’s labor and employment lawyers with all aspects of labor and employment law, including regulatory matters as well as litigation.

As a law student, Abbie gained experience as a legal extern with the Ohio Attorney General’s office, as a judicial extern to the Hon. Christopher A. Boyko of the U.S. District Court for the Northern District of Ohio, and as a summer associate with Porter Wright. She also served as a senior editor of the Case Western Reserve University Law Review.