The Business Council’s Response to the Adoption of the HERO Act
ALBANY - We appreciate efforts by the administration and some lawmakers to make the so-called HERO act more workable for employers, especially small employers. However, we still see this legislation as going well beyond what is necessary to assure that workplaces are safe for employees and customers during public health crises.
State data that shows New York's employer's – operating under NYForward protocols and existing OSHA standards -- had a strong record in limiting the spread of COVID-19 in the workplace. Requiring employers to have plans in place and to be ready to respond to similar future emergencies makes sense.
But this new law places significant new burdens on businesses. Although there is a promise of future "technical amendments," The Business Council, while advocating on behalf of New York's employers, has several concerns with the way the law is written including:
- Significant concerns regarding a provision for workplace safety committees for all worksites of 10 or more. The bill provides almost no guidance on how these committees are to be comprised or how many employees can participate but requires paid time off for employee training and participation in regular meetings. An employer with multiple worksites, all doing similar work, may have to have a separate committee at each location.
- The bill also requires employers to share compliance plans and documents with employee committees for review and comment but says little about the employer's obligations to respond to such reviews. Together, these requirements impose additional compliance burdens on employers, while their ambiguity will result in a significant likelihood of employer "violations." State and federal laws already encourage employee participation in creating a safe working environment and protects them from retaliation for exercising those rights.
- As adopted by the legislature, the bill allows for employee lawsuits for alleged employer violations of safety standards, with liquidated damages up to $20,000 per violation. The major concession to business concerns seems to be an agreement to eliminate liquidated damages and require notice to employers and a 30 day "cure period" before suits can be filed.
Given what is already in law, this bill will do little to further the cause of employee safety but instead impose new administrative requirements and costs on businesses, especially small businesses, trying to recover from the greatest economic disruption in state history. Some amendments to the act are promised, and we urge lawmakers to listen and respond to the concerns of employers still struggling to recover.