New York Governor Andrew Cuomo signed the New York Health and Essential Rights Act (the HERO Act) into law on May 5, 2021, requiring the New York State Department of Labor and New York State Department of Health to create industry-specific airborne infectious disease standards that must be used by all employers doing business within the State of New York.
The standards codify many of the requirements currently applicable to employers pursuant to Governor Cuomo’s COVID-19-related executive orders and New York Forward re-opening guidelines. The HERO Act also requires employers to permit their employees to form a “workforce safety committee” with the authority to review and police employer compliance with the new standards. The HERO Act will become law June 4, 2021; however, many of the provisions will not take effect until a later date.
When signing the bill into law, Governor Cuomo announced a chapter amendment with the state legislature that would make additional revisions into the law, including to give the New York State Department of Labor (DOL) and employers more specific instructions in developing and implementing workplace safety standards and a clearer implementation timeline (the original bill called for the DOL to issue these standards within 30 days of the bill becoming law). Separate from the workplace standard requirements, the provisions related to workforce safety committees, described below, will take effect November 1, 2021.
The chapter amendment changes include:
*Amend the definition of "worksite" to limit such term to locations over which an employer has the ability to exercise control.
*Amend the definition of "employee" to clarify that such term includes individuals working for digital applications and platforms.
*Require the Commissioner of Labor to create a model airborne infectious disease exposure prevention standard for each industry representing a significant portion of the workforce, or with unique characteristics requiring distinct standards, as well as a general model standard to capture all other worksites.
*Require employers to adopt an airborne infectious disease exposure prevention plan within 30 days after the Commissioner of Labor publishes the model standard relevant to their industry.
*Clarify that an employer's airborne infectious disease exposure prevention plan does not have to be posted in a vehicle, if the vehicle is considered the employee's worksite.
*Eliminate liquidated damages for civil actions for injunctive relief, and add a six-month statute of limitations for such actions.
*Require employees to notify their employers of alleged violations, and provide employers with a 30-day cure period to correct such violations, during which employees would not be able to bring a civil action.
*Allow the courts to award costs and attorney's fees to employers if a civil action for injunctive relief or retaliation is found by the court to be frivolous.
Section two of the bill would amend section 27-d of the Labor Law, as added by Chapter 105 of the Laws of 2021, to:
*Limit the joint labor-management workplace safety committees to one committee per worksite.
*Provide an exemption for employers that have an existing workplace safety committee that meets the minimum requirements of the law.
Section three of the bill would extend the effective date of section one of Chapter 105 of the Laws of 2021, establishing the requirements for the model airborne infectious disease exposure prevention standard, from 30 days to 60 days.