NY HERO Act Update: Employer-Friendly Amendments Enacted

The amendments to the NY HERO Act have been officially enacted and are now part of the statute. Those amendments clarify various deadlines and modify certain obligations to facilitate compliance by employers.

As previously reported (here and here), the HERO Act requires New York employers to adopt workplace safety protocols and to engage with employee groups on workplace health and safety concerns.

Governor Cuomo signed the Act on May 5, 2021, but simultaneously announced that he had reached agreement with the Legislature to enact certain amendments.  On June 11, the Governor signed those amendments into law.  

Under the now-amended statute, the following deadlines and requirements are in effect:

Model Safety Protocols

• By July 5, 2021: The New York Department of Labor (“NY DOL”) must publish industry-specific model disease prevention protocols. 
  • 30 days thereafter: Within 30 days of the DOL’s publication, employers must either adopt the model protocol applicable to their industry or create their own airborne disease prevention plan that meets or exceeds the minimum requirements of the law.
  • 60 days thereafter: Within 60 days of publication, employers must provide the adopted or equally-stringent safety protocols to their employees.

Workplace Safety Committees

• By November 1, 2021: Employers must begin permitting employees to form a joint labor-management workplace safety committee with employee and employer designees.  The committee must be allowed to raise workplace health and safety concerns, review employer policies related to workplace health and safety topics, participate in government site visits relating to workplace health and safety standards, and attend committee meetings and trainings related to workplace health and safety standards.

Legal Liability

• July 5, 2021: Businesses can be liable for discrimination or retaliation under the Act.

While most employers will choose to await the DOL protocols and act accordingly thereafter, they should begin working with counsel to ensure compliance with all the various provisions of this one-of-a-kind workplace safety law.  Employers with unionized workforces must consider whether and how the requirements under the NY Hero Act will complement or conflict with their obligations under their respective collective bargaining agreements.

Seyfarth will continue to monitor developments in this space and provide updates when available.