December 2, 2021

Volume XI, Number 336

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New York State Amendments to the HERO Act

On June 7, 2021, the New York State legislature approved several amendments to the New York Health and Essential Rights Act (“HERO Act” or the “Act”). The Act was signed into law by New York Governor Andrew Cuomo on May 5, 2021 and requires employers to implement safety standards to prevent occupational exposure to airborne infectious disease. See our previous bulletin, New York State Enacts Hero Act.

The amendments provide employers in New York State with additional time and guidance on how to comply with the HERO Act. The amendments are summarized below:

Effective Date of the Prevention Plan

The requirement in Section 1 of the Act that the New York State Department of Labor (the “NYSDOL”) and the New York State Department of Health (the “NYSDOH”) create a model airborne infectious disease exposure prevention plan (“Prevention Plan”) has been postponed from June 4, 2021 to July 5, 2021. The effective date of Section 2 of the Act, which establishes an employee’s right to form workplace safety committees, remains November 1, 2021.

Model Airborne Infectious Disease Exposure Prevention Standards

Within thirty (30) days after the Commissioner publishes the model general standard and the model industry standards, the amendments require that employers implement an airborne infectious disease exposure plan, either by adopting the applicable model standard or by creating an alternative plan that meets or exceeds the minimum requirements in the model standard.

Definition of Employee and Worksite

The definition of a covered “employee” has been broadened to include individuals working for digital applications or platforms. The definition of “worksite” has been revised to prioritize locations where work is performed over which an employer can exercise control. Telecommuting or telework sites do not fall under the term’s purview, unless “the employer has the ability to exercise control of such site.”

Liability

To commence a civil action for an alleged violation of the Act, an employee must provide the employer with thirty (30) days’ notice before commencing suit. Only where the employee alleges with particularity that the employer has been unwilling to cure the violation in bad faith can the employee bring suit without first providing notice. Any civil action must be commenced within six (6) months from the date the employee had knowledge of the alleged violation.

If the action is found to be frivolous at any point during the proceedings, the court can award reasonable attorneys’ fees and costs to the employer.

Workplace Safety Committees

Employers shall permit employees to establish and administer a joint labor-management workplace safety committee, but not more than one committee per worksite. If an employer already has a workplace safety committee that is otherwise consistent with the requirements of the Act, the worksite shall be exempt from creating additional safety committees. Committees are still allowed to schedule a committee meeting during work hours at least once a quarter, but the amendments clarify that the meetings shall not last longer than two (2) hours.

© 2021 Vedder PriceNational Law Review, Volume XI, Number 174
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About this Author

Blythe E. Lovinger, Labor and Employment Practice, Vedder Price Law Firm
Shareholder

Blythe E. Lovinger is a Shareholder in the New York office of Vedder Price and a member of the firm’s Labor and Employment practice group. 

Ms. Lovinger focuses her practice on employment litigation before federal and state courts, administrative agencies and arbitration panels. She has defended employers and senior executives against claims of discrimination, harassment and retaliation as well as actions brought under the Fair Labor Standards Act, the New York Labor Law and the Family and Medical Leave Act. Ms. Lovinger has extensive experience...

212-407-7770
Jonathan A. Wexler, Vedder Price Law Firm, Labor Employment Attorney
Shareholder

Jonathan A. Wexler is a shareholder at Vedder Price and a member of the firm’s Labor and Employment Practice Area of the New York office. He represents private-sector, not-for-profit, and public-sector clients in litigation matters in federal and state courts, and before such administrative agencies as the Equal Employment Opportunity Commission, the New York State Division of Human Rights, the National Labor Relations Board, and the New York Department of Labor.

212-407-7732
Victoria L. Jaus Employment Litigation Attorney Vedder Price New York, NY
Associate

Victoria L. Jaus is an Associate in Vedder Price’s New York office and a member of the firm’s Litigation group. She focuses her legal practice on complex commercial litigation and Labor and Employment in federal and state courts at both the trial and appellate court levels.

Prior to joining Vedder Price, Ms. Jaus interned at the United States Attorney’s Office for the Eastern District of New York and as a Judicial Intern for the Honorable Ramon E. Reyes of the Eastern District of New York. Ms. Jaus also worked at the Kings County District Attorney’s Office, and at the National Labor...

212-407 7745
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