NY HERO Act Update: Proposed Amendments Would Provide Some Relief for Employers

The New York Legislature is considering amendments to the New York Health and Essential Rights Act (“NY HERO Act”) that would address some concerns raised by the business community. The proposals would clarify the timelines for compliance, narrow the jurisdiction of the workplace safety committees, create a statute of limitations for employees to bring lawsuits, among many other topics. 

As we previously reported here and here, Governor Andrew Cuomo signed the NY HERO Act on May 5, 2021, but simultaneously announced that he had reached an “agreement” with both houses of the Legislature to amend the law to (1) provide more specific instructions and timelines for the New York Department of Labor (“DOL”) and employers to enact required workplace safety standards, (2) allow employers the opportunity to immediately cure violations, and (3) limit litigation to situations where employers are “acting in bad faith and failing to cure deficiencies.” 

Subsequently, legislators in both chambers introduced identical bills that would amend the Act to address many of the concerns raised by the business community with the current statute.  The pertinent proposed amendments are summarized below:

1. Extend Deadline for DOL from 30 Days to 60 Days.  The current law requires the DOL to create industry-specific model safety protocols by June 4, 2021.  The amendments would give the DOL 30 extra days, to July 5.
2. Employers Can Wait Until DOL Enacts Standards.  The current law does not provide a clear deadline by which employers must adopt or create sufficient safety protocols, nor is it clear about whether they must do so before the DOL publishes its model protocols. The amendments clarify that employers will not need to create a disease prevention plan until 30 days after the DOL creates its model industry-specific protocols.  Additionally, employers would have 60 days following the DOL publication to provide such safety protocols to their employees.
3. Jurisdiction of Workplace Safety Committee Narrowed to Safety and Health Issues.  The current law includes the following language regarding the scope of the workplace safety committee’s jurisdiction: “Review any policy put in place in the workplace required by any provision of this chapter or any provision of the workers’ compensation law and provide feedback to such policy in a manner consistent with any provision of law.” Employers were understandably concerned about the potential breadth of that obligation.  The amendments would provide that the committees can “[r]eview any policy put in place in the workplace required by any provision of this chapter relating to occupational safety and health and provide feedback to such policy in a manner consistent with any provision of law.”  The change would therefore limit the scope to workplace safety and health issues,  precluding a reading that would authorize the committees to address “any provision” of the New York Labor Law.
4. Big Changes to Available Damages.  The current law provides the opportunity for liquidated damages “unless the employer proves a good faith basis to believe it was in compliance.” The amendments strike that provision and instead provide that the court may award costs and reasonable attorneys’ fees to the employer if  the court deems the employee’s lawsuit to be “frivolous,” and provide that such an award may be assessed against the plaintiffs or their attorney. 
5. Opportunity to Cure and Limits on Suit.  The amendments require an employee to provide the employer with 30 days’ notice and an opportunity to cure a violation before bringing a civil action, unless the employee “alleges with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith.”  Moreover, under the amendments, an employee cannot bring a civil action “if the employer corrects the alleged violation” or more than “six months from the date the employee had knowledge of the violation.” 
6. Committee Limitations.  The amendments limit the workplace safety committee to one per worksite.  Moreover, the amendments provide that employers need not permit the creation of a committee if the employer “already has a workplace safety committee that is otherwise consistent with the requirements of this section.” 
7. Limited Paid Meetings and Trainings for Committee Members.  The current law provides that employers must permit committee members to attend quarterly meetings during work hours and to attend a training without loss of pay regarding position responsibilities and rights under this law. The amendments limit the quarterly meetings during working hours to two hours and the paid training to no more than four hours. 

The Legislature has no specific timeline for approval of these amendments, and as of this writing they have been referred to the respective committees in the State Assembly and Senate.

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