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.
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.
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.
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.
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.
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.