On December 28, 2022, Governor Kathy Hochul signed into law an amendment to Section 2 of the New York Health and Essential Rights Act (NY HERO Act). As we previously reported, among its other provisions, the NY HERO Act requires all private employers with at least ten employees to allow employees to establish joint employer-employee committees authorized to raise workplace health and safety issues and evaluate applicable policies.

The amendment, which took effect immediately upon signing, provides that "[a]n employer must recognize within five business days the establishment of a workplace safety committee." The amendment, however, lacks guidance about the precise steps required to "recognize ... the establishment of a workplace safety committee."

In addition, the amendment sets forth an enforcement provision prescribing a civil penalty "of not less than fifty dollars per day until [a] violation is remedied." Further, the amendment provides that the commissioner of the New York State Department of Labor (NYS DOL) may order "other appropriate relief" for violations, including equitable relief.

Implications for Employers

Although employers have not been required to activate their NY HERO Act plans since March 17, 2022, when the designation of COVID-19 as "a highly contagious communicable disease that presents a serious risk of harm to the public health" in New York ended, Section 2 of the act, which authorizes the formation of workplace safety committees that can "[r]aise health and safety concerns, hazards, complaints and violations," remains in effect. For worksites where a workplace safety committee has not been previously established, employers may wish to educate appropriate personnel about their responsibility to promptly recognize a committee established pursuant to the NY HERO Act. Following any such recognition, employers may wish to provide additional training about the roles of committees and the rights of employees who participate in the activities of such committees.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.