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New York’s HERO Act & Workers’ Compensation

The NY HERO Act was recently amended on June 11, 2021. How will this Act impact workers’ compensation claims in New York?

What Is the New York Health and Essential Rights (NY HERO) Act?

The New York Health and Essential Rights (NY HERO) Act requires the State Department of Labor (“DOL”) to create an airborne infectious disease safety standard and mandates that employers implement measures that meet or exceed such standard (NY Labor Law §§ 218-b, 27-d).

The first section of the act (Section 1) outlines the types of employers (all except for state employers and governmental entities) and types of employees that are covered by the Act (part-time workers; independent contractors; domestic workers; temporary and seasonal workers; individuals working for staffing agencies; and individuals delivering goods or transporting people at, to, or from the worksite).

Section 2 of the Act outlines the requirements for joint-labor workplace committees for those employers. Additionally, Section 2 requires employers with 10 or more employees to permit employees to establish a joint labor-management workplace safety committee to assist in the review, implementation, and enforcement of health and safety policies in the workplace.

The NY HERO Act was recently amended on June 11, 2021, and the amendments changed important deadlines relevant to employers

First, they postponed the effective date of Section 1 of the Act, which requires the DOL to develop the airborne infectious disease safety standard, from June 4, 2021, to July 5, 2021.

Second, they extended the deadline for employers to adopt or establish a plan that satisfies the DOL’s model standard to “within 30 days after the commissioner publishes the model general standard and the model standard relevant to the industry.”

Finally, they extended the deadline for employers to distribute the plan to employees to “within 30 days after adoption of the plan” or within 15 days following reopening after a period of closure due to airborne infectious disease, and thereafter to new employees upon hire. While the DOL has not yet published the airborne infectious disease safety standard, it recently added a section to its website where it will share more details about the NY HERO Act (https://dol.ny.gov/ny-hero-act).

How Does the New York Health and Essential Rights (NY HERO) Act Impact Workers’ Compensation?

In terms of how the NY HERO Act affects NY Workers’ Compensation Law, there is no question that this Act was passed as a measure to prevent occupational exposure to airborne infectious diseases, considering the novel coronavirus.

In light of the recent NY Workers’ Compensation Board Panel precedence, there is a continued reliance on the demonstration of “prevalence” in the workplace as to establish compensability of COVID-19. With a clear and delineated plan that duplicates or is more stringent than that of what the DOL will publish, Carriers can argue that prevalence could not be demonstrated, as the NY HERO Act prevention plans were widely distributed and strictly enforced in the workplace. At a compensability trial, this would require the testimonies of supervisors and co-workers as to confirm that the prevention plans were, in fact, commonly known and rigorously implemented. This would then mean that the Claimant deviated from the plan, which would arguably be out of the scope of employment.

Additionally, the NY HERO Act’s amendments eliminated the provision that would have permitted the joint labor-management committee to review policies relating to “any provision of the Workers’ Compensation Law.” While the original NY HERO Act required the consideration of Workers’ Compensation Law, the amended version had this portion stricken. This does not mean, however, that considering Workers’ Compensation Law in the committee would be prohibited. Thus, Carriers should encourage its insureds that Workers’ Compensation Law be considered, and that Carriers should request a copy of the prevention plans and policies enacted.

As New York State businesses implement operational changes based upon revisions in occupancy limits that took effect in May 2021, and in response to the State’s May 19, 2021, adoption of the CDC’s guidance for fully-vaccinated individuals, New York employers may want to consider the following measures pending enactment of these amendments to the NY HERO Act:

  • reviewing and, if necessary, updating the existing New York Forward Safety Plan to the extent that modification or clarification is warranted, based upon the New York reopening guidance that became effective on May 19, 2021;
  • posting the current safety plan in visible and prominent locations within each worksite;
  • distributing the current safety plan to employees and communicating to employees the importance of complying with the plan’s provisions and advising of potential consequences for noncompliance;
  • training designated supervisory employees and managerial employees, as well as human resources professionals, about the requirements of the Act; and
  • monitoring the status of the publication by the DOL to ensure compliance with the Act’s model standard.

Questions about the New York HERO Act and it’s impact on workers’ compensation claims? Contact LOIS.

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