NY HERO Act – Deadline to Implement Coming September 5
August 26, 2021
NY HERO Act – Deadline to Implement Coming September 5

If the Covid-19 pandemic has taught us anything, it has taught us to be prepared for the next pandemic. We don’t want to live in constant fear of how we can stay safe and healthy at work, so that’s why the New York Health and Essential Rights Act (NY HERO Act) was signed into law on May 5, 2021. Employers have a responsibility to protect their employees from exposure to an airborne infectious disease. By acting quickly and implementing health and safety standards, we can hopefully prevent the loss of productive work time, and in turn, the loss of business revenue.


As I detailed in my previous blog post, on July 6, 2021, the New York State Department of Labor (NYS DOL) in conjunction with the New York State Department of Health (DOH), released its Airborne Infectious Disease Exposure Prevention Standard (the “general standard”), an Airborne Infectious Disease Exposure Prevention Plan (the “model”), and eleven New York State industry-specific templates. Together, these form the basis for the NY HERO Act.


An airborne infectious disease exposure prevention plan only goes into effect when the New York State Commissioner of Health determines that a highly contagious communicable disease poses grave risk to public health, much like Covid-19; however, there is no such prevention plan in effect at this time.

 

Employers Must Pick a Prevention Plan

As of August 5, 2021, all employers were required to adopt either the “Model” template or one of the following 11 New York State Industry-Specific Exposure Prevention Plan templates. These templates are for “industries representing a significant portion of the workforce, or those with unique characteristics requiring distinct standards:”

•       Agriculture

•       Construction

•       Delivery Services

•       Domestic Workers

•       Emergency Response

•       Food Services

•       Manufacturing and Industry

•       Personal Services

•       Private Education

•       Private Transportation

•       Retail


Every employer must adopt a template or develop their own plan that meets or exceeds New York’s standards. If you haven’t done that yet, Saturday, September 4, 2021 (best by Friday, September 3, 2021), is the deadline to verbally communicate the plan to all employees, including all full and part-time employees, independent contractors, individuals working for digital applications or platforms, workers hired through a staffing agency, and domestic workers (cited here). This communication can either be done in-person, in writing, or if employees are still working remotely, via audio or video conference.


In addition, the plan must be posted in a highly visibly and prominent location in the workplace, and it must be included in your Employee Handbook if you have one. It must also be provided upon request to all employees, employee representatives, independent contractors, collective bargaining representatives, the New York State Department of Labor (NYS DOL), and the New York State Department of Health (NYS DOH).


Effective November 1, 2021, if you happen to be an employer of ten or more employees, you must allow employees to create a joint labor-management workplace safety committee to evaluate health and safety issues and develop or evaluate current workplace health and safety policies. Only one committee per worksite is required, and if the employer already has a safety committee in place that meets the state’s requirements, they are exempt from creating another one. The committee must be comprised of employer and employee designees, with at least two-thirds non-supervisory employees who are chosen by non-supervisory employees. If a collective bargaining agreement exists, the collective bargaining representative will choose the members. The plan also allows for, but does not require, the creation of multiple committees for multiple worksites, if more than one worksite exists. Employers are prohibited from interfering with the selection of committee members.


What are the Requirements of the HERO Act?


As part of the Airborne Infectious Disease Exposure Prevention Standard, all employers must assess the types of exposure risks for employees in performing all activities at a worksite. Controls that will be added as part of a company’s exposure plan include:


•       Employee health screenings

•       Face coverings

•       Physical distancing

•       Hand hygiene and sanitizing facilities

•       Cleaning and disinfecting of shared equipment and frequently touched surfaces

•       Personal Protective Equipment (PPE), such as masks, gloves, face shields, etc.

•       Compliance with orders of isolation or quarantine

•       Compliance with applicable engineering controls, such as proper air flow or ventilation

•       Designation of supervisory employee(s) to enforce compliance with the plan and related applicable laws

•       Compliance with applicable notification laws, rules, regulations, standards, and guidance

•       Verbal review of infectious disease standards, employer policies, and employee rights


Consequences for Not Implementing an Exposure Prevention Plan

The New York State Commissioner of Health could assess civil penalties in the amount of $50 per day for the employer’s failure to adopt a plan. If a company has a plan in place, but refuses to follow it during an airborne infectious disease period, they could incur civil fines anywhere between $1,000-$10,000. These fines may increase for repeated plan violations. The NY HERO Act also permits employees (in some cases) “to seek injunctive relief and for the courts to award costs, including attorneys’ fees; however, if an employee brings a frivolous claim under the statute, the employer can be awarded costs and attorneys’ fees against the employee or against the employee’s attorney, or both.” (Littler)


According to the article by Littler, New York HERO Act Requires Workplace Safety Measures,


“An employee may bring a civil action seeking injunctive relief against an employer for violating the airborne infectious disease exposure prevention plan “in a manner that creates a substantial probability that death or serious physical harm could result to the employee from a condition which exists, or from one or more practices … which have been adopted or are in use, by the employer at the work site, unless the employer did not and could not, with the exercise of reasonable diligence, know of the presence of the violation.


Before bringing a civil action, an employee must give the employer notice of the alleged violation so the employer has an opportunity to cure it. An employee may not bring a civil action until thirty days after giving the employer notice of the alleged violation, except where an employee alleges with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith, and may not bring a civil action if the employer corrects the alleged violation.”


A civil action must be filed no later than six months from the date the employee knew of the alleged violation.


SimcoHR Can Help!

SimcoHR will provide any assistance in helping employers develop and implement a plan that meets or exceeds the New York State Department of Labor standards. In addition, we can work with you to distribute the plan to your employees and update your Employee Handbook accordingly and hopefully generate greater employee involvement in the health and safety measures within the workplace. Let us know how we can help!


Read More:  The New York State HERO Act - What Employers Need to Know.

Sign up for our newsletter.

Top 5 HR Trends That Will Shape Businesses in 2025

January 7, 2025
As 2025 kicks off, the HR landscape is evolving faster than ever before. Technology, shifting workforce expectations, and the need for businesses to be agile in a dynamic global environment are all driving change. What worked yesterday may not be enough today, and companies must adapt to stay ahead. Here are the top five HR trends you’ll need to watch closely in 2025: 1. AI is Changing the Hiring Game Artificial intelligence is no longer just a buzzword in HR—it’s a game-changer. Tools that can scan resumes, match candidates to roles, and even conduct initial assessments are becoming staples for businesses aiming to save time and improve hiring outcomes. In 2024, many organizations began integrating AI to remove unconscious bias and make their hiring practices more inclusive, and this trend is expected to accelerate. 2. Flexibility Isn’t Just a Perk Anymore Hybrid and remote work models are here to stay, but the conversation has shifted. In 2025, it’s less about offering flexibility and more about making it work effectively. Companies are adopting sophisticated tools for remote collaboration, redefining performance metrics, and ensuring policies address the nuances of managing both in-office and remote teams. The focus is on maintaining productivity without compromising employee well-being. 3. Wellness Goes Beyond Gym Memberships In recent years, wellness programs have evolved beyond basic offerings like gym memberships to address a wider range of employee needs. As companies recognize the link between employee well-being and productivity, they’re broadening their focus to include mental health, financial stability, and holistic support. In 2023 and 2024, for example, Delta expanded its employee wellness initiatives by improving access to mental health care. The airline worked with Spring Health, a new EAP provider, to create a larger and more diverse network of mental health professionals, offering better support for both employees and their household members. Looking ahead to 2025, wellness will become more deeply integrated into company cultures. Expect companies to go beyond providing reactive support to fostering proactive wellness through personalized tools, such as mental health apps, financial coaching, and enhanced benefits like paid leave for caregiving. With these programs, businesses are not just addressing immediate health concerns but also empowering employees to manage their overall well-being in a more holistic way. The focus will be on creating a supportive, sustainable work environment that helps employees thrive both at work and in their personal lives. 4. Upskilling is a Competitive Necessity Technology is evolving faster than ever, and companies are racing to keep up. Upskilling employees in areas like data analysis, AI, and emerging tech became a priority in 2024, and it’s clear that this trend will only grow. Businesses that invest in continuous learning programs—whether through certifications, on-the-job training, or digital learning platforms—are better positioned to stay ahead in their industries. 5. Data is Driving HR Decisions HR is leaning heavily on people analytics to guide decision-making. Instead of relying on intuition, businesses are using data to understand employee engagement, pinpoint reasons for turnover, and improve productivity. The emphasis on metrics like employee sentiment and workforce utilization gained traction last year, and more organizations are embedding analytics into their HR strategies to tackle challenges proactively. Final Thoughts The HR landscape in 2025 will be shaped by these transformative trends. Businesses that embrace innovation and prioritize their people will find themselves not just adapting but thriving in the evolving workplace. As these trends unfold, staying proactive and flexible will be the key to turning challenges into opportunities.

IRS Announces 2025 PCORI Fee Update

January 6, 2025
The IRS has released the 2025 Patient-Centered Outcomes Research Institute (PCORI) fee , which will increase to $3.47 per covered life —a $0.25 increase from 2024. This fee applies to plan years ending on or after October 1, 2024 , and before October 1, 2025 . What is the PCORI Fee? The PCORI fee was introduced as part of the Affordable Care Act (ACA) to help fund the research conducted by the Patient-Centered Outcomes Research Institute (PCORI). This research focuses on improving healthcare outcomes by comparing different medical treatments. The fee is levied on insurers, as well as self-insured and level-funded health plans. The fee is calculated based on the average number of covered lives under a plan and is due once a year, with the filing occurring during the second quarter on Form 720 , the Quarterly Federal Excise Tax Return . The payment is due by July 31 each year. Key Details for Employers and Plan Sponsors Who is Affected? : The fee applies to health insurers, self-insured health plans, and level-funded health plans. When is it Due? : The fee must be reported on Form 720 and paid by July 31 each year. How is it Calculated? : The fee is based on the average number of covered lives during the plan year. The updated $3.47 per covered life fee will be in effect for health plans with policy years ending between October 1, 2024, and October 1, 2025. Employers should be prepared to account for this increase when filing for 2025. For more information on the PCORI fee and its reporting requirements, consult the IRS Bulletin 2024-49 , published on December 2, 2024, or visit the IRS PCORI Fee page . 

Federal DOL Restores Simplified Tip Credit Rule: Employer Guidance

January 6, 2025
In a move welcomed by many employers in the hospitality and service industries, the U.S. Department of Labor (DOL) has officially reinstated the pre-2021 tip credit rule. This change, effective December 17, 2024, follows a recent court of appeals decision that vacated the “80/20/30” tip credit rule that had been implemented under the Trump administration. If you’re wondering what this means for your business, don’t worry—this update doesn’t require any immediate action on your part. What Was the "80/20/30" Rule? Before we dive into the implications of the DOL’s latest rule change, let’s quickly review the "80/20/30" rule. This rule, introduced in 2021, placed specific restrictions on how much time tipped employees (such as waitstaff and bartenders) could spend on non-tip-generating duties (e.g., cleaning, setting up, and other side work). The rule essentially required that tipped workers spend at least 80% of their work hours on tip-generating activities to continue qualifying for the tip credit. Moreover, under the "80/20/30" rule, employers could no longer use the tip credit to offset wages for certain non-tip-producing activities, and they had to ensure that employees spent no more than 30 minutes at a time on side duties. This increased the burden on employers, as it required more careful tracking of employee duties and work hours to remain in compliance. Why Was the Rule Vacated? The court of appeals decision in August 2024 ruled that the "80/20/30" rule was too restrictive and inconsistent with the intent of the Fair Labor Standards Act (FLSA), which allows employers to take a tip credit for workers who perform both tipped and non-tipped duties. The court found that the new rule created unreasonable administrative burdens and restrictions that were not in line with past practices or legal precedents. In response to this ruling, the DOL moved quickly to restore the pre-2021 tip credit rule. What Does the Reinstatement of the Pre-2021 Rule Mean for Employers? With the reinstatement of the pre-2021 tip credit rule, the DOL has effectively simplified the way employers can apply the tip credit to their workers. Under the prior rule, employees who perform a combination of tipped and non-tipped duties can still qualify for the tip credit, as long as their primary job responsibility is related to tipped work. Employers no longer have to track the precise breakdown of time spent on tip-generating vs. non-tip-generating activities in the same way. This returns to the more flexible guidelines where as long as tipped employees perform "related" duties (e.g., cleaning their station, setting up for service), they can still receive the tip credit for those hours, provided those activities don’t dominate their workday. What Action Is Needed from Employers? For most employers, this change will not require any immediate action, as the final rule effectively restores the pre-2021 approach. The main thing to note is that employers should continue to comply with the broader requirements of the Fair Labor Standards Act (FLSA) and ensure they are properly paying employees at least the federal minimum wage (including tips) when they apply the tip credit. Here are a few things to keep in mind: Reassess Timekeeping Systems: While the rule change simplifies some aspects of record-keeping, employers still need to ensure they have a timekeeping system in place that accurately tracks the hours worked by tipped employees. It is essential to ensure that the wages (base pay plus tips) equal at least the federal minimum wage. No Need for Immediate Adjustments: If you were already applying the pre-2021 tip credit rule, no changes are necessary on your part. For those who had adjusted to the "80/20/30" rule, reverting back to the previous method should not require significant changes. State and Local Laws: Employers should still be mindful of any state or local laws that may have stricter requirements than federal law. Always check your state’s labor regulations to ensure full compliance. Why Is This Change Important? The reinstatement of the simplified tip credit rule provides relief to many employers, particularly in industries like restaurants, hotels, and other service-based businesses where tipping is common. The pre-2021 rule is seen as more employer-friendly, offering more flexibility in how tipped employees can spend their time without losing eligibility for the tip credit. For employers, this means less administrative burden, reduced risk of compliance issues, and potentially fewer legal challenges. This shift is a step toward simplifying labor law compliance for businesses already struggling with the complexities of wage and hour rules. Looking Ahead As we move further into 2025, it’s important for employers to stay informed of any future changes in federal labor regulations. While this change restores a previous rule, the DOL’s stance on tip credits and wage issues can continue to evolve. Employers in tip-dependent industries should continue to monitor updates from the Department of Labor and legal rulings to ensure ongoing compliance. The DOL’s restoration of the pre-2021 tip credit rule is a welcome change for many businesses, offering a return to simpler guidelines and less restrictive requirements. For most employers, no immediate action is required, but it’s always a good idea to review your practices to ensure they align with the updated rule. If you need further assistance in navigating these changes, reach out to Simco to ensure your business stays compliant in 2025 and beyond. 

Have a question? Get in touch.

Share by: