Hero Act Amendments Pending
As many New York employers are aware, last month Governor Cuomo signed the HERO Act which will require employers to create a policy to prevent airborne infectious diseases in the workplace, based on standards issued by the Department of Labor (DOL). The Act also permits employees to form a joint labor-management workplace safety committee to address health and safety issues in the workplace. Governor Cuomo’s signature on the bill was reportedly conditioned on the Legislature enacting certain amendments to the Act, including adjusting the timeline for implementation of the airborne infectious disease prevention standards. Identical bills were proposed in the Senate and Assembly and so the amendments are expected to pass. However, as of today, these amendments have only passed the state Senate and are under consideration by the Assembly. Below are the highlights of the proposed changes:
A more limited array of standards: Rather than promulgating policies for “all work sites, differentiated by industry”, the DOL model policies will only be differentiated by industries representing a “significant portion of the workforce” or those with “unique characteristics requiring distinct standards”. Otherwise, the DOL will produce a general policy which will be applicable to all other worksites.
Adjustments to the timeline and process for compliance:
Under the current version of the Act, the DOL is expected to issue draft model policies on June 4. The legislation would extend that deadline another 30 days, to July 5. Employers then have 30 days after the model standards are published to either adopt the model standard or establish an alternative plan.
The adopted plan must be provided to all employees (a) within 30 days after adoption, (b) within 15 days after reopening, and (c) to a new employee upon hire. Businesses permitted to operate as of the effective date of the amendment must provide the plan to all employees within 60 days after the commissioner publishes the model standard. The definition of “employee” remains expansive and includes independent contractors as well as “gig workers” who work for digital applications or platforms.
The model plan must be posted in a visible location within each worksite. However, a “worksite” does not include a vehicle or a telecommuting/telework site which the employer cannot control. As with the prior version of the legislation, the employer’s plan must also be included in the employee handbook.
Though the precise content of the plan will depend on the DOL guidance, the basic plan requirements remain unchanged. Further information on the plan requirements can be found in our prior client alert.
Limitations on civil actions: An employee who wishes to bring a civil action must do so within 6 months of the date that the employee had knowledge of the purported violation of the plan. However, the employee must give the employer 30 days’ notice of the alleged violation before filing a civil action – unless the employee can allege with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith. If the employer corrects the violation, the employee cannot bring the action.
Employees may only bring civil actions seeking injunctive relief if there is a violation of the plan that creates a substantial probability that death or serious physical harm could result to the employee.
Employees who prevail in those actions are no longer entitled to recover liquidated damages.
Additionally, where the employee’s claim is found to be frivolous, the employee and/or the employee’s attorney may be required to pay the employer’s costs and reasonable attorneys’ fees.
Clarification of Workplace Safety Committee Requirements:
Only one workplace safety committee is permitted per worksite and an employer that already has a committee which functions consistently with the Act does not have to create an additional committee.
The prior scope of the Workplace Safety Committee was fairly extensive – encompassing any policy required by the Labor Law or Workers’ Compensation Law. The amendments limit the purview of the Committee to providing feedback on policies required by the Labor Law that relate to occupational safety and health. The Committee can also review the adoption of any policy created in response to any other health or safety law, rule, ordinance, regulation, executive order, or similar directive.
The amendments clarify that the Committee is not permitted to participate in a site visit by a governmental agency which enforces health and safety standards if their participation would be prohibited by law.
The meeting and training time required of committee members is explicitly limited by the amended language. Under the amendments, the quarterly meetings of the safety committee can last no more than two hours, and the training that the committee members must attend can be no longer than four hours.
Though the precise requirements of the airborne infectious disease prevention plans are still unclear, the amendments will provide the DOL with further time to promulgate standards and employers with an additional period to review, consider, and implement the same. This delay may not, however, be welcome to employers who are in the process of trying to solidify their reopening plans, particularly given the limited guidance thus far from the state. We will continue to monitor the revisions to this legislation and any subsequent guidance issued by the Department of Labor. Individuals with questions should feel free to contact Kristina Grimshaw at kgrimshaw@fglawllc.com or any other attorney at the Firm.
DISCLAIMER: This alert is provided to clients and friends of the firm for informational purposes only and the distribution of this alert is not intended to, and does not, establish an attorney-client relationship. This alert also does not provide or offer legal advice or opinions on any specific factual situations or matters. This communication may be considered Attorney Advertising. Prior results do not guarantee a similar outcome.