Gov. Andrew Cuomo recently announced that many COVID-19 restrictions would be lifted when 70 percent of New Yorkers aged 18 or older received the first dose of their COVID-19 vaccination series. On June 15, 2021, Gov. Cuomo announced that benchmark was hit.
In effect, New York’s guidance, including social gathering limits, capacity restrictions, social distancing, cleaning and disinfection, health screening, and contact information for tracing, are now optional for retail, food services, offices, gyms and fitness centers, amusement and family entertainment, hair salons, barber shops and personal care services, and other commercial settings.
However, New York and the CDC’s position continues to be that unvaccinated individuals continue to be responsible for wearing masks. Further, New York’s health guidelines continue to be in effect for large-scale indoor event venues, pre-K to grade 12 schools, public transit, homeless shelters, correctional facilities, nursing homes, and health care settings.
Businesses are free to choose to lift all or some restrictions, continue to adhere to the state’s archived guidance, or implement other health precautions for their employees and patrons. Businesses are also authorized to require masks and six feet of social distancing for employees and patrons within their establishments, regardless of vaccination status.
As a word of caution, any mask requirements that businesses choose to implement must adhere to applicable federal and state laws and regulations. Employers are well advised to review the updated Equal Employment Opportunity Commission guidance updated on May 28, 2021.
As a brief refresher, the HERO Act amended New York Labor Law and included two main components: 1) creating a mandate that private sector employers adopt an airborne infectious disease prevention plan; 2) requiring employers to permit employees to establish joint labor-management workplace safety committees.
The biggest concern employers had relating to the HERO Act was the quick timetable for the New York Department of Labor (DOL) to create model plans and for employers to adapt, adopt, and implement the same. Under the amendment, employers will be provided a 30-day buffer to establish an airborne infectious disease exposure prevention plan after the DOL publishes the model general standard and the model standard for each industry.
The amendment also specifies that the DOL will create a general model airborne infectious disease exposure prevention standard, as well as certain industry specific models that either have a significant portion of the workforce or unique characteristics.
The amendment limits in scope the definition of “worksite” to a more manageable scope. Under the new definition, “worksite” is limited to physical space where employers have the ability to exercise control, which in many cases will not include locations relating to telecommuting or vehicles.
Employees must receive copies of the airborne infectious disease exposure prevention plan within 30 days after it is adopted, within 15 days after reopening after a period of closure due to airborne infectious disease, and to newly hired employees upon hire. Moreover, the plan must be posted in a visible and prominent location within each worksite.
Notably, the amendment erects hurdles to employees commencing lawsuits against their employers. Employees now must give their employer notice of the alleged violation and the employer is entitled to a 30-day cure period, except where the employee alleges with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith. Employees may only bring the civil action within six months from the date the employee had knowledge of the violation. While other remedies remain available under the law, the amendment removes the possibility of employers inquiring fines of up to $20,000 in liquidated damages. The amendment also beefs up the consequences for employees and the attorney’s representing them that file frivolous lawsuits.
Employers are advised to keep a watchful eye for the DOL’s model plans to be released, which is now scheduled for July 5, 2021. However, with New York’s simultaneous lifting of COVID-19 restrictions, developing these model plans may not be a top priority for the DOL. With that in mind, it would not be surprising if that date is kicked out even further. Regardless, employers will want to start developing processes and plans relating to the implementation of the plan. For example, employers will need to include the plan as a part of onboarding, amend the employee handbook to include the policy, train managers, and create acknowledgements sheets for employees to sign off on upon receipt.
The amendment clarifies what many believed to be a drafting error. Specifically, in its original form, the HERO Act indicated that the workplace safety committee needed to be permitted to review a very broadly defined scope of employer policies. The amendment clarifies what undoubtedly is the intent of the law, which is that the only policies the committee is entitled to review are the ones that relate to occupational safety and health.
Other limitations on workplace safety committees include that there only needs to be one committee per worksite, committee meetings shall not last more than two hours, and the committee members are limited to four hours of training.
Perhaps most notably, the amendment exempts employers that already have a workplace safety committee that is otherwise consistent with the requirements of the law. Accordingly, those employers do not need to create additional safety committees.
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