Updated on June 17, 2021

As we previously reported, the New York Health and Essential Rights Act, or NY “HERO Act,” was signed into law on May 5, 2021, subject to pending technical changes effectuated by the New York legislature. The proposed amendments passed in the New York Senate on May 26, 2021 and in the New York Assembly on June 7, 2021. The amendments were then signed into law by Governor Cuomo on June 14, 2021.

The HERO Act requires the state Department of Labor (“DOL”) to create an airborne infectious disease safety standard and mandates that employers implement measures that meet or exceed such standard. Additionally, the Act requires employers with 10 or more employees to permit employees to establish a joint labor-management workplace safety committee to assist in the review, implementation, and enforcement of health and safety policies in the workplace.

• The amendments change important deadlines relevant to employers, as follows:
  postpones the effective date of Section 1 of the Act, which requires the DOL to develop the airborne infectious disease safety standard, from June 4, 2021 to July 5, 2021;
• extends the deadline for employers to adopt or establish a plan that satisfies the DOL’s model standard to “within 30 days after the commissioner publishes the model general standard and the model standard relevant to the industry;” and
• extends the deadline for employers to distribute the plan to employees to “within 30 days after adoption of the plan” or within 15 days following reopening after a period of closure due to airborne infectious disease, and thereafter to new employees upon hire.

While the DOL has not yet published the airborne infectious disease safety standard, it recently added a section to its website where it will share more details about the NY HERO Act.

The amendments do not change the effective date of Section 2 of the Act, which governs the joint workplace safety committee and is operative on November 1, 2021.

Additionally, the amendments clarify and modify certain provisions of the Act, including:

• clarifying that employees who are not assigned as supervisory employees do not have responsibility for overseeing workplace compliance with the safety standard;
• requiring employees to give employers at least 30 days’ notice of the alleged violation and an opportunity to cure before bringing a civil suit, and imposing a 6-month statute of limitations from the date the employee had knowledge of the violation alleged;
• limiting employees’ ability to recover liquidated damages and permitting courts to assess costs and attorneys’ fees against an employee and/or their attorney if, at any time, it determines a filed action to be frivolous;
• clarifying that employers who already have an Act-compliant safety committee will not be required to create an additional committee, and that only one safety committee per worksite must be permitted;
• eliminating the provision that would have permitted the committee to review policies relating to “any provision of the workers’ compensation law;”
  limiting the duration of safety committee quarterly meetings to no longer than 2 hours; and
• limiting the training that safety committee designees may attend without loss of pay to no more than 4 hours.

Seward & Kissel will continue to monitor developments and additional guidance in light of these amendments. In the meantime, however, New York businesses are already subject to state and federal COVID-19 safety measures, which Seward & Kissel has covered in past client alerts. Employers should contact counsel for assistance in complying with existing local, state, and federal reopening guidance and the upcoming HERO Act obligations.

* * *

Seward & Kissel has established a COVID-19 Resource Center on our website to access all relevant alerts that we distribute.

If you have any questions regarding the NY HERO Act, COVID-19 reopening guidance, or any other employment issues, please contact Anne C. Patin at (212) 574-1516, Julia C. Spivack at (212) 574-1373 or your relationship partner at the Firm.