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January, 2022

NY Employers Must Recognize Employee Requests for Workplace Safety Committees

By Nida Jamshed and Tracey I. Levy

New York employers focusing on COVID-19 compliance may overlook additional workplace health and safety obligations imposed by the HERO Act, for which the New York State Department of Labor issued proposed regulations on December 22, 2021.

What is the NY HERO Act?

In May 2021, New York passed the HERO Act, Part 1 of which requires all private employers to adopt a health and safety plan for the protection of employees when there is an airborne infectious disease.  As we have discussed in prior blog articles, those plans should have been adopted by September 5, 2021, and have been activated since Labor Day to prevent the spread of COVID-19.

Part 2 of the NY HERO Act requires employers with 10 or more employees in New York State to allow workplace safety committees by employees – even in non-unionized workplaces.  The HERO Act does not require any employer to develop a workplace safety committee; rather the law provides that if employees choose to create one, the employer may not disallow it. The Department of Labor (DOL) issued a proposed rule on December 22, 2021, which will not take effect until after formal hearings, that lays out the scope of employer involvement in such a committee and addresses different categories of the law: establishment of committees, composition, rules, and employer obligations.

Establishment:

To establish a workplace safety committee, two or more non-supervisory employees who work at a single worksite will need to submit a written request to the employer.  This can be in the form of one written request signed by two non-supervisory employees, or two separate requests. Employers must respond to the request with “reasonable promptness,” but that term is not defined in the proposed regulations. If an employer already has a workplace safety committee that is otherwise consistent with the labor laws, then it just needs to inform the employees of the existing committee. If there is no committee already in place, the employer has five days to provide notice to employees of the recognition of the committee.

Composition:

The NY HERO Act also sets rules regarding the composition of the committees to ensure that the voice of the employees is adequately heard. The ratio is set with at least two non-supervisory employees to one employer representative (a 2:1 ratio with majority to the employees).  The employer can appoint its own representatives in the 2:1 ratio, but non-supervisory employees should not be selected by the employer. For employees who are unionized, the union representative will select the employee representative for the committee. For non-unionized employees, the representative can be selected by any means as long as the employer does not interfere.

If the worksite has less than 10 employees, then the committee should have three members, with two non-supervisory employees and one employer representative. If there are less than 36 employees at the worksite, then the number of committee members is a maximum of one-third of the employees. If there are more than 36 employees, then the maximum amount of committee members is twelve. Lastly, committees must be co-chaired by a non-supervisory employee and an employer representative.

Rules:

The committee has the authority to adopt its own rules, procedures, and bylaws consistent with the HERO Act. If none are adopted, then it can only act by a majority vote of its members. The committees need to ensure that meetings do not unreasonably conflict with the employers’ operations and that the committee responsibilities do not interfere with work responsibilities. The co-chairs must also notify the employer of any changes to the membership.

Employer Obligations:

After a workplace safety committee is established, employers have a few additional obligations.

  • A duty to respond: The employer has a duty to respond to each of the committees’ concerns and related requests for policies or reports in writing and in a reasonable time. Again, a reasonable time is not defined in the law.
  • Notice of enforcement visits: If there are any governmental safety and health enforcement visits that the employer knows are planned, then the employer must give the committee notice of that visit unless it is prohibited by law.
  • Meetings and trainings on company time: The employer must allow trainings and meetings during working hours and on company time, provided that committee trainings do not exceed four hours per calendar year and meetings, conducted at least once per quarter, do not exceed two hours. If a meeting does exceed two hours, then employees need not be paid for the additional meeting time.
  • Protecting confidentiality: The employer must make its best efforts to refrain from disclosing information to the committee or its members that is either outside of the scope of the workplace safety committee or otherwise would be prohibited by law, such as the vaccination status of employees.

Next Steps:

Employers need to be responsive to any requests they receive from employees seeking to form a workplace safety committee.  While the specific processes outlined by the DOL for forming and governing such committees have not been finalized, this portion of the HERO Act itself took effect in November 2021, and New York employers therefore are already under an obligation to recognize employee requests to form such committees.

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June, 2021

All NY Employers Need to Develop Safety Plans Under HERO Act

By Tracey I. Levy and Alexandra Lapes

Note Important Update below.

Responding to the perceived lack of sufficient worker protections issued by OSHA and frustration with the lack of federal leadership in the prior presidential administration with regard to COVID-19 safety measures, New York State adopted the Health and Essential Rights (“HERO”) Act, which mandates a plethora of new safety standards for all employers.  The HERO Act officially takes effect June 4, 2021, but the Act itself only enumerates the 11 elements of an employer safety plan and leaves it to the New York State Department of Labor (DOL), in consultation with the Department of Health (DOH), to actually develop a model airborne infectious disease exposure prevention plan, with industry-specific standards, that will set the minimum standard for each of the 11 elements of the safety plan.  To this point the DOL/DOH have not issued the model plan or any guidance on the new safety standards.

For employers with more than 10 employees, effective November 1, 2021 the HERO Act will additionally borrow a concept that may be familiar to unionized workplaces, and permit employees to establish and administer a joint labor-management workplace safety committee.  If requested, the members of such a committee must be at least two-thirds non-supervisory employees, and the committee must be co-chaired by a representative of the employer and a non-supervisory employee.  The purpose of the safety committee is to adopt workplace safety standards, develop ways for reporting concerns, review applicable policies, participate in site visits by government health and safety officials, and review any reports filed by the employer related to health and safety.  The committee is expected to meet at least quarterly, during work hours.  Employers cannot interfere with the selection of committee members and must pay committee members for time spent attending training on safety standards.

As with so many new employment law obligations, the HERO Act prohibits employers from discriminating or retaliating against employees who seek to enforce the rights provided under the law.

What NY Employers Need to Do Now

The model safety plan will cover the following eleven topics:

1. employee health screenings,

2. face coverings,

3. personal protective equipment provided at the employer’s expense,

4. hand washing and breaks for hand washing,

5. cleaning shared equipment and other frequently touched surfaces,

6. social distancing,

7. quarantine orders,

8. engineering controls such as air flow and ventilation,

9. designated supervisor(s) to enforce safety standards,

10.compliance with notice requirements to employees and government officials, and

11.verbal review of safety standards, employer policies, and employee rights.

Most, if not all, of these are already significant considerations that employers have been working through over the course of the pandemic as they have sought to maintain/reopen their workplaces and protect the safety of their employees, clients, customers and visitors.  Any New York employer that thought that widespread vaccinations might bring an end to these measures should reassess their approach and continue with workplace operational plans that consider the latest guidance from the Centers for Disease Control and New York State on all 11 of these elements, pending more definitive guidance from DOL/DOH.  Employers should compile a written document (their own “safety plan”) that memorializes their approach with regard to each of the 11 elements.

Notably, once a model safety plan has been developed by the state, employers will either need to adopt that plan, or compare it against their own written safety plan to ensure the employer’s plan meets or exceeds all elements of the state’s model safety plan.  Employers will be required to provide a copy of their written safety plan to all employees, in English and any other primary language, at multiple times/in multiple formats:

  • as of the first opportunity, be that the effective date of the Act, upon hire, or upon the employee’s return to the workplace;
  • as a workplace posting in a visible location;
  • in the employee handbook (if the employer has one); and
  • whenever requested by the employee.

One of the most publicized and challenging aspects of the HERO Act for employers is that it imposes significant enforcement provisions:

  • hefty fines and monetary penalties, and
  • empowering individual employees to sue for non-compliance and seek both a court order forcing compliance with the law, as well as liquidated damages of up to $20,000,

unless the employer can demonstrate good faith attempts to comply.

Proposed amendments to the law, which are currently wending their way through the legislature, reportedly in accordance with an agreement on which the Governor conditioned his signature of the original version of the HERO Act, are intended to lessen the enforcement provisions, extend the deadlines for compliance, and make other clarifications.  If adopted, the amendments will remove the liquidated damages clause and the requirement that the employer demonstrate good faith attempts to comply, and instead require the employee to provide 30 days’ advance notice of a perceived violation to the employer, limiting the right to sue to circumstances in which the employer “demonstrates an unwillingness to cure a violation in bad faith.”  A prevailing employee is entitled to recover reasonable attorneys’ fees and costs under the HERO Act, and the proposed amendments would enable a court to similarly award reasonable attorneys’ fees and costs to a prevailing employer in the event a claimed violation of the Act is found to have been frivolous.  The amendments would further extend the effective date of the law out to July 5, 2021, and grant employers 30 days to draft their own safety plans, beginning as of the date the DOL/DOH issues the model safety plan, plus an additional 30 days to distribute the plan to current employees.

If adopted, the amendments would thereby effectively give employers until around Labor Day to distribute their written safety plans.  While the amendments are still pending, however, employers are left in a somewhat precarious state as the HERO Act technically requires immediate development and distribution of a written safety plan, but the required elements of that plan have not yet been defined and, even once issued, it will take employers some time to review and incorporate them.

Important Update as of 6/15/21: The New York State legislature passed the amendments to the HERO Act, thereby delaying the deadline for compliance and lessening the enforcement provisions.

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