NYS Legislature Passes HERO Act
Last week, the New York State Legislature passed legislation focused on health and safety in the workplace. Specifically, the bill requires that the Commissioner of Labor and Department of Health create an airborne infectious disease standard for all private employers which must be disseminated to all employees. The law also permits employees to create joint employer-employee workplace safety committees to raise health and safety issues and evaluate the health and safety protocols of the workplace.
Airborne Infectious Disease Standards
Citing the lack of enforceable guidance from OSHA on this matter, and the need for enforceable standards applying to all airborne diseases, the new law would require the Commissioner of Labor and Department of Health to issue minimum requirements for preventing exposure to airborne infectious diseases in the workplace. These standards are intended to be differentiated by industry and to take into consideration factors such as the presence of third parties at the worksite and the specific risks present at the worksite. The standard will also specify whether certain measures should be enacted depending on the level of exposure, the existence of a state of emergency, and any applicable federal standards which may be issued. Specifically, the standards must address the following:
Requirements for employee health screenings;
Face coverings and personal protective equipment;
Hand hygiene, including accessibility of hand hygiene stations and provision of adequate break time for handwashing;
Cleaning and disinfecting of shared equipment, frequently touched surfaces, and high-risk areas (e.g., restrooms, dining areas, and vehicles);
Effective social distancing;
Compliance with orders of isolation or quarantine;
Engineering controls such as proper airflow, exhaust ventilation or other requirements;
Designation of one or more supervisory employees to enforce compliance with the airborne infectious disease exposure prevention plan and any other applicable federal, state, or local guidance related to avoiding spread of an airborne infectious disease;
Compliance with applicable laws, rules, regulations, standards or guidance on notifying employees and relevant agencies of possible exposure at the work site;
Verbal review of infectious disease standards, employer policies, and employee rights under the law; and
The prohibition against retaliating against an employee for:
Exercising the employee’s rights under the plan or the law;
Reporting violations of the plan or the law to any governmental entity, public officer, or elected official;
Reporting an exposure concern, or seeking assistance or intervention with respect to such a concern, to their employer, a governmental entity, public officer, or elected official; and
Refusing to work when the employee reasonably believes in good faith that the work exposes the employee, coworkers, or the pubic to an unreasonable risk of exposure to an airborne infectious disease because the working conditions are inconsistent with any governmental directives, including the model standard. To show retaliation under this prong, the law requires that the employee, a coworker, or an employee representative first notify the employer of the inconsistent working conditions and that the employer fail to correct the condition or that the employer had or should have had reason to know about the condition and still maintained it.
Employers must either adopt the model standard relevant to their industry or another plan that equals or exceeds the minimum standards of the model plan. Employers with a unionized workforce who want to develop their own plan must engage the collective bargaining representative and develop a plan pursuant to an agreement with said representative. However, it should be noted that the provisions of the law may be waived by a collective bargaining agreement which explicitly references the legislation. For non-unionized employees, the employer must develop the plan with “meaningful participation of employees” for all aspects of the plan. The law does not describe what this “meaningful participation” would entail.
The plan must be provided to employees in English and in the language identified by each employee as their primary language, provided that the language is one where a model document is available from the Commissioner. The plan must be provided both upon hiring as well as once the employer reopens following a closure due to an airborne infectious disease. For businesses operating as of the effective date of the new law, the plan must be provided as of the effective date. A copy of the plan must also be posted in a visible, prominent location within the workplace as well as included in the employee handbook. The plan must be available upon request to all employees, independent contractors, collective bargaining representatives, employee representatives (an undefined term), as well as the Commissioners of Labor and of Public Health.
Employers who violate this legislation may be subject to civil penalties and injunctive relief. The law also provides employees with a private right of action to seek injunctive relief when the employer’s alleged violation of the plan creates a “substantial probability” of death or serious physical harm, unless the employer did not know about the presence of the violation and could not have known with reasonable diligence. Such an award may also result in the employer paying attorneys’ fees and costs, as well as liquidated damages of up to $20,000. If any claim, defense, or cross claim is brought under the legislation and found to be completely without merit and filed primarily to harass or maliciously injure another party, the law grants the court the ability to impose sanctions.
Health and Safety Committees
Employers with more than ten employees must permit employees to establish and administer a joint labor-management workplace safety committee composed of employer and employee designees, with at least two-thirds of the members being non-supervisory employees. Non-supervisory members must be selected by non-supervisory employees without the interference of the employer, except where a collective bargaining agreement is in place, in which case the collective bargaining representative is responsible for selecting employees to serve on the committee. The committee must be co-chaired by an employer representative and a non-supervisory employee.
Responsibilities of the committee include: raising health and safety concerns, hazards, complaints and violations to the employer to which the employer must respond; review of policies required by the Labor Law or Workers Compensation Law and providing feedback on the same; reviewing the adoption of any policy in response to any health or safety law, rule, regulation, executive order, or directive; participation in any site visit by an governmental entity responsible for enforcing safety and health standards; review of any report filed by the employer related to workplace health and safety; and meeting regularly during work hours, at least once per quarter. Safety committee designees must be permitted to attend a training, without loss of pay, on the function of worker safety committees and an introduction to occupational safety and health. Employees who participate in the committee cannot be subject to retaliation. As the committee is focused on the worksite, the law notes that committees representing geographically distinct worksites may be formed as necessary.
Like the workplace safety plan, this section of the law may also be waived by a valid collective bargaining agreement which explicitly references this section. It should be noted, however, that the law does not appear to mandate the creation of these committees, but rather to permit employees to form them. Greater guidance is, however, anticipated in the form of rules and regulations.
The bill has not yet been signed by the Governor. If signed, the provision regarding the airborne infectious disease plan will go into effect 30 days after signature. The provisions regarding the workplace committees will become effective 180 days after signature. Given the tight timelines, employers should begin considering the content of any airborne infectious disease standard and closely monitor the issuance of sample standards by the Department of Labor. Employers with unionized workforces should also consider whether to propose waivers to these new requirements in their collective bargaining agreements or any amendments of the same, though such waivers would not obviate the employer’s obligations with regard to non-unionized workers. Employers with questions about this pending legislation should contact Kristina Grimshaw at kgrimshaw@fglawllc.com or any attorney at the Firm.
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