On June 11, 2021, Governor Cuomo signed the HERO Act amendments into law. The amendments had been issued by the Legislature on June 7 (the “Amendments”). As discussed below, Section 1 of the Act takes effect on July 5, 2021, although employers are not required to adopt an airborne infectious disease exposure prevention plan until the State issues a model/template prevention plan. Section 2 of the HERO Act, permitting the creation of a workplace safety committee, takes effect on November 1, 2021.

Model Airborne Infectious Disease Exposure Prevention Standards

The Amendments direct the Commissioner of the NYS Department of Labor (the “Commissioner”), in consultation with the NYS Department of Health (“DOH”), to create and publish a model airborne infectious disease exposure prevention standard for industries representing a significant portion of the workforce and those with unique characteristics requiring distinct standards. The Commissioner will also create “a general model airborne infectious disease exposure prevention standard” applicable to all other worksites. It is not clear if home care will be included within a broader category for “healthcare,” or whether it will have its own industry standard.

Deadlines to Establish and Provide Airborne Infectious Disease Exposure Prevention Plan

Within 30 days after the Commissioner publishes the model general standard and the model industry standards, the Amendments require employers to adopt an airborne infectious disease exposure plan – either by adopting the applicable State model standard or by establishing an alternative plan that meets or exceeds the minimum requirements provided by the model standard.

Employers must provide the plan to employees within 30 days of the adoption date and thereafter within 15 days after reopening after a period of closure due to airborne infectious disease. The plan must also be provided to newly hired employees upon hire.  For those employers permitted to operate as of July 5, 2021, the prevention plan must be provided to all employees no later than 60 days after the Commissioner publishes the model general standard and applicable industry standard.

Definition of Employee and Worksite

The Amendments update the definition of a covered employee to include “individuals working for digital applications or platforms.” In addition, the definition of worksite is updated as follows: “any physical space, including a vehicle (though an employer’s prevention plan need not be posted in a vehicle), that has been designated as the location where work is performed over which an employer has the ability to exercise control.” This likely means that private homes of individuals (i.e., patients and consumers) will not be covered as a worksite. And, if the home is not a worksite, then the safety standards of the HERO Act will not apply in the home.

The updated definition notes that this term does not include a telecommuting or telework site unless the employer has the ability to exercise control of such site. Therefore, employees’ homes, where they might be working remotely, will generally not be covered and subject to the HERO Act requirements.

Workplace Safety Committees

With respect to workplace safety committees, the Amendments clarify that employers are not required to permit more than one committee per worksite. Thus, one committee per location/office for LHCSAs and FIs.

The Amendments further clarify that the committees are authorized to raise issues relating to any policy relating to occupational safety and health, but eliminates language that also would have authorized the committee to review policies relating to workers’ compensation law. Committees are still authorized to schedule a committee meeting during work hours at least once each quarter, though the Amendments specify that such meetings “shall last no longer than two hours.”

The amendments also specify that the training, which the safety committee designees are permitted to attend without loss of pay, may not exceed four hours.

For home care, it is not clear if the committees will require HHA/PCA participation. It may not be practical for HHAs/PCAs to participate in these committees, due to their work being offsite and the difficulty of bringing in HHAs/PCAs to the office (or even telephonically) to participate in these types of activities.

Liability Limitations

As readers will recall from our prior alerts, employees have the right to bring a private action against their employer for violations of the HERO Act.

Before commencing a civil action based on an alleged violation of the Act, the Amendments require an employee to give the employer notice of the alleged violation. Specifically, an employee is prohibited from bringing a civil action until 30 days after giving the employer notice of the alleged violation, except where an employee alleges with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith. An employee also may not bring a civil action if the employer remedies the alleged violation. In addition, any civil action alleging a violation of the Act must be brought within six months from the date the employee has knowledge of the alleged violation.

The Amendments eliminate a prior provision that authorized courts to order payment of liquidated damages of no greater than $20,000 unless the employer proved a good faith basis to believe that the established health and safety measures were in compliance with the applicable airborne infectious disease standard.

The Amendments permit employers to seek attorneys’ fees and costs from an employee bringing a frivolous action.