COVID Restrictions Lifted and HERO Act Amendments: Are Businesses in the Clear?

As was much anticipated following Governor Cuomo’s prior declaration that most COVID restrictions would be lifted if New York State reached the threshold mark of 70% of those age 18 and older having at least one vaccination shot, the Governor excitedly followed through on his promise by lifting COVID restrictions in commercial and social settings, with a few exceptions. With this milestone reached yesterday, many business owners are breathing a sigh of relief and are excited to get back to business as it was prior to COVID. But, Matt Miller and our Labor & Employment team want businesses to be aware of the New York HERO Act and to prepare to implement its requirements in the near term.

COVID Restrictions and NY Forward Industry Reopening Guidance

Effective immediately, the following NYS health guidance and COVID-related restrictions have now been lifted and rendered optional in commercial and social settings, including in retail, food services, offices, gyms and fitness centers, amusement and family entertainment, hair salons, barber shops and personal care services, construction, and manufacturing, among others:

  • Social gathering limits;
  • Capacity restrictions;
  • Social distancing;
  • Cleaning and disinfection;
  • Health screening; and
  • Contact information for tracing purposes.

There are, however, a few exceptions to all of this, including that unvaccinated people must continue to maintain social distancing and wear a mask per CDC guidance. Also important to know is that NYS’s health guidelines continue to be in effect for large-scale indoor event venues (more than 5,000 attendees), pre-K to grade 12 schools, public transit, homeless shelters, correctional facilities, nursing homes, and health care settings, per CDC guidance.

Is your business in the clear now to operate in a pre-COVID fashion? It would seem so according to the Governor, as long as your business is not in one of the noted exception industries. You now have the option to continue to adhere to the COVID guidance or put in place other measures. But, business owners would be wise to proceed cautiously and pay close attention to the New York HERO Act that was signed into law in early May. On that, we have an update.

NY HERO Act and Employer-Friendly Updates

On May 7, we released an Alert about the new HERO Act (found here), and how it requires all businesses in New York to put in place minimum workplace health and safety requirements and forces businesses to create and implement airborne infectious disease exposure plans. These sweeping new workplace safety protocols are much like the safety plans required by NYS’s COVID reopening guidance (requiring plans for things like health screenings, face coverings, PPE, and social distancing) and businesses need to prepare to have them in place (or keep them in place). In addition, the HERO Act originally authorized individual employees to sue their employers for any violations of the safety protocols.

However, on June 11, 2021, some employer-friendly amendments to the HERO Act were enacted and are now part of the law. These amendments bring significant changes which are important for your business to account for while also making sure that you are in compliance with the remaining safety requirements once the Act becomes effective.

Deadlines for the Model Safety Protocols Per the HERO Act

  • July 5, 2021 – New York State Department of Labor (NYSDOL) is required to publish industry-specific model disease prevention protocols.
  • Within 30 days thereafter – Within 30 days of the NYSDOL’s release of the model protocols, all NY employers must either adopt the model protocols or create their own airborne disease prevention plan that meets or exceeds the model protocols.
  • Within 60 days thereafter – Within 60 days of the NYSDOL’s release, all employers must provide their safety protocols to all employees.

Modifications to Workplace Safety Committees

  • November 1, 2021 – Businesses must begin allowing (not requiring) employees to form a joint labor-management workplace safety committee, which must be allowed to raise workplace health and safety concerns, review policies related to health and safety topics, participate in government site visits, and attend meetings and trainings.
    • The HERO Act amendments limited such a committee exclusively for the purpose of discussing issues of occupational health and safety.
    • The amendments reduced paid time for employees to 2 hours for committee meetings and 4 hours for committee trainings.

Employer Liability Changes

  • Injunctive Relief – now is limited only to claimed violations that address a high probability of death or serious injury for the employee.
  • Opportunity to Cure – your business will get 30 days’ notice to cure any alleged violation before an employee can sue, and if corrected, the employee has no cause of action. The employee likewise has no cause of action if 6 months pass by since the claimed violation.
  • No More Money Damages – money damages no longer are available to employee plaintiffs under the Hero Act. A court can now also award employers’ costs and attorneys’ fees in the case of a frivolous suit by an employee. This change should significantly disincentivize the swell of employee lawsuits that was predicted under the originally passed HERO Act.

While more reasonable heads prevailed in Albany and the Hero Act amendments bring about some welcome relief for businesses, you still have to comply with some significant changes to the workplace safety laws in New York.

COVID Restrictions and the HERO Act

Although all COVID-related safety and sanitary protocols have been lifted for businesses in New York, don’t trash those reopening safety plans just yet – they likely will be useful in the coming weeks as the HERO Act becomes a compliance issue for your business. It is imperative to engage with counsel for assistance in navigating this complicated time for workplace health and safety standards in New York.

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