NYS Publishes Proposed HERO Act Regulations
As employers may recall, Section 2 of New York State’s HERO Act requires employers to permit employees to form a joint labor-management workplace safety committee. These obligations took effect on November 1, 2021. On December 22, 2021, the DOL issued proposed regulations for Section 2.
Committee Formation Requirements
Under the proposed regulations, to establish a committee, a written request for recognition must be provided by at least two non-supervisory employees who work at the worksite (multiple requests shall be combined and treated as a single request). Employers cannot interfere with the selection of the non-supervisory employees. Upon receipt of a recognition request, employers must respond with “reasonable promptness.”
Employers may deny requests received after a committee has been recognized and refer it to such committee. Employers may also deny requests where an employer already has a workplace safety committee in place that is otherwise consistent with the HERO Act and refer the request to such committee. Employers must provide notice to all employees at the worksite of recognition within five days of recognition. Additionally, workplace safety committees representing geographically distinct worksites may also be formed by non-supervisory employees (including by non-supervisory employees who regularly work in multiple or different geographically distinct worksites).
Committee Members
These committees may have a maximum number of twelve members, including non-supervisory employees and employer representatives. However, worksites that have fewer than ten employees shall have three members. These committees cannot have less than two non-supervisory employees and less than one employer representative. The ratio of non-supervisory employees to employer representatives cannot be less than two non-supervisory employees to one employer representative at any given time. A non-supervisory employee and an employer representative shall co-chair the committee. The co-chairs are responsible for notifying the employer of changes to the membership of the committee.
At worksites where a collective bargaining agreement governs, the collective bargaining representative selects the employee representatives for the committee. At worksites where a CBA does not govern, the employees are allowed to select the members of the committee. Examples of selection methods provided by the proposed regulations include, but are not limited to, self-selection, nomination by co-workers, and elections. A non-supervisory employee cannot be a member of two different workplace safety committees for the same employer.
Committee Rules
Workplace safety committees may:
take actions as a committee in a manner consistent with any rules or procedures adopted by the committee. If no rules or procedures are adopted by the committee, the committee may take action only by majority vote;
establish rules or bylaws, such rules and bylaws may include but are not limited to procedures for the selection of new members, terms of members, and the training of new members; and
provide for an official training opportunity for committee members provided, however, that such training shall not, for any member, exceed four hours in any calendar year. Such official training shall be without loss of pay to committee members.
Meetings of these committees shall be:
scheduled in accordance with rules adopted by the workplace safety committee, otherwise by agreement of the co-chairs; and
scheduled at times that do not unreasonably conflict with the employer’s business operations.
Meetings may be conducted at least once a quarter for no longer than two work hours in total for all meetings per quarter. Time spent during work hours for any such meetings are considered hours worked. The proposed regulations do not restrict a workplace safety committee’s ability to conduct additional meetings beyond the quarterly meetings, but additional meetings must be conducted outside of work hours and do not constitute hours worked, except with permission of the employer. Additionally, employees’ work on workplace safety committee matters, aside from quarterly meetings, may not interfere with the performance of their work responsibilities. Employers may restrict the performance of committee duties during work hours, except during quarterly committee meetings.
Employer Obligations
The proposed regulations also outline five employer obligations following the establishment of a workplace safety committee. These obligations include:
Respond, in writing, to each safety and health concern, hazard, complaint and other violations raised by the workplace safety committee or one of its members within a reasonable time period.
Respond to a request for policies or reports that relate to the duties of the workplace safety committee from a workplace safety committee or one of its members within a reasonable time period.
Provide notice, where practicable and not prohibited by law, to the workplace safety committee and its members ahead of any visit at the worksite by a governmental agency enforcing safety and health standards.
Appoint an employer representative to the committee to act as co-chair.
Permit members of the workplace safety committee to attend a meeting for up to two paid hours per quarter and an official training as scheduled by the committee.
The DOL will a hold a public hearing at 11:00 a.m. on February 9, 2022, likely via videoconference, to receive public comments and feedback on these proposed regulations. The DOL will consider the feedback from the hearing and issue final regulations.
Takeaways
Employers should begin to prepare protocols for requests for recognition and meeting employer obligations outlined by the proposed regulations. Employers should also consider which employees should be appointed as employer representatives and prepare to train those employees to meet the requirements of Section 2 of the HERO Act. Employers may also want to consider developing a system or process to promptly respond to each safety and health concern, hazard, complaint and other violations raised by the workplace safety committee or one of its members as well as process or system to respond to request for policies or reports that relate to the duties of the workplace safety committee made by a workplace safety committee or one of its members.
Ultimately, these regulations are not final. The firm will continue to monitor these regulations and provide an update when the final regulations are published. Employers with questions about the NYS HERO Act or workplace safety committees should contact Caroline Secola at csecola@fglawllc.com or any attorney at the Firm.
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