HR Alert: NY Amends Certain HERO Act Provisions

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Recently, we blogged about the HERO Act signed into law, which requires employers to implement airborne infectious disease exposure standards in the workplace. Governor Cuomo now has signed legislation amending certain portions to the HERO Act.

The law just passed.  What changed??  Great question. When Governor Cuomo signed the HERO Act into law, he tweeted in a press release that amendments to the law would be coming.

The amendment changed (1) the time when employers need to establish and provide employees with an airborne infectious disease exposure prevention plan, and (2) how an employee may bring a lawsuit for failure to correct a hazard in the workplace.

When must I implement my plan?  The amendment gave the New York State Department of Labor (DOL) more time to create the general standard and industry-specific model plans for employers to either fully implement or expand upon.

Employers must now implement the model plan or adopt an alternative plan that meets the minimum standards within 30 days of the DOL publishing the general and industry-specific standards.

After implementation, employers need to provide the policy to employees, within 30 days after adoption. Newly-hired employees must receive the policy upon hire.

Businesses who have not yet reopened must provide employees with the plan within 15 days of reopening. If your business is currently open, the plan must be provided within 60 days after the DOL published the model standard.

When can an employee sue?  The amendments to the HERO Act did not remove employer liability under the law.  An employee must allege that the employer violated the plan and the violation created a “substantial probability that death or serious physical harm could result from a condition” in the workplace.

Now, the law requires an employee to first tell his or her employer of the alleged violation and can’t file a lawsuit until 30 days after giving notice. The employee can’t start a lawsuit if her employer corrects the wrongdoing. The only exception to the 30-day waiting period is where the employee can show her employer was unwilling to correct a violation in bad faith.

An employee has six months to bring a lawsuit against her employer.

We’re continuing to watch for updates on the HERO Act and the DOL’s model prevention plan standards. Reach out to our team with specific questions on the new requirements.

Lisa Coppola

Written by Lisa Coppola

Founder of The Coppola Firm

Lisa A. Coppola, Esq. understands the challenges her clients face, whether they’re starting a new business, taking their existing operations in a new direction, or facing a claim or threat.

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