Governor Signs Amendments Giving DOL until July 4 to Publish Model Standards for NY HERO Act 

Situation Report | June 21, 2021

Governor Cuomo has signed chapter amendments to a new law, the New York Health and Essential Rights Act (NY HERO Act), which creates major airborne infectious disease control workplace requirements for most employers (those with at least 10 employees) in New York State.

As previously reported, the NY HERO Act also requires employers to establish and maintain a joint labor-management workplace safety committee with a range of duties and authorities related to the newly required infectious disease prevention plans.

While the original law was signed in May, the Governor and Legislature negotiated amendments that lawmakers passed during the final days of the Legislative Session in early June.

These amendments, now signed by the Governor, give the state Department of Labor (DOL), in consultation with the state Department of Health, until July 4 to create industry-specific model safety standards. The model standards shall “establish minimum requirements for preventing exposure to airborne infectious diseases in the workplace.”

The amendments also include a timeline for when employers must implement the airborne infectious disease prevention plans required by the Act. These plans must be adopted within 30 days after the model standards are published and they must be provided to employees within 60 days after the model standards are published.

In addition, the amendments clarify that the “work site” includes space “over which an employer has the ability to exercise control.” HCA will seek further information on what this means for the applicability of the new requirements to patients’ homes versus home care and hospice agency office sites.

The amendments also specify that the workplace safety committees are to review areas related to occupational safety and health, whereas the original language was less prescriptive. They also clarify that employers need not create a new committee if they already have one which is consistent with the new law. HCA will seek examples of existing committee structures, designs and functions that may already qualify for fulfilling the law.

Also, an employee may not bring a civil action for violation of the law until 30 days after notifying the employer of an alleged violation, except where an employee alleges an employer’s unwillingness to cure a violation is “in bad faith,” and an employee may not bring a civil action if the employer corrects the alleged violation.

These are just a few of the prominent changes that HCA wanted to bring to the attention of members as you prepare for the posting of model standards in July and implementation of airborne infectious disease prevention plans.

We are further analyzing the chapter amendments to identify additional changes and expect a detailed analysis soon from our government-affairs firm, after which we will share a more comprehensive update.

This law raises numerous challenges and impracticalities for home care employers, as well as the potential for duplication of requirements and possible inconsistencies with other laws and regulations. HCA will be addressing these issues with the Administration and seeking reimbursement to cover any unfunded mandates on providers. We will also be planning further education programs and resources to assist providers in their implementation and compliance efforts.