The New York Department of Labor finally issued Model Safety Plans and Standards for airborne infectious diseases. All employers, regardless of size and with a worksite in New York, must adopt a safety plan by August 5, 2021, and must post, distribute and include the plan in their handbooks to all employees and new hires by September 5, 2021.
The New York Health and Essential Rights Act (HERO Act), which was signed into law on May 5, 2021, and amended shortly thereafter, is one of the nation’s first state laws governing prevention of airborne infectious diseases in the workplace.
The NYDOL released a general Model Safety Plan for all employers and industry-specific model plans for Construction, Food Services, Manufacturing and Industrial, Delivery Services, Private Transportation, Emergency Response, Private Education, Personal Services, Domestic Workers, Retail and Agriculture. Employers must adopt one of the NYDOL Model Plans and Standards or their own more stringent plan, which must contain certain minimum controls, standards and requirements.
The model standards will address minimum requirements for preventing exposure to airborne infectious diseases in the workplace such as:
If an employer develops an alternative prevention plan of their own, the employer is required to either develop the plan pursuant to a collective bargaining agreement (if applicable), or where there is no collective bargaining agreement, with “meaningful participation of employees.”
The HERO Act adds two new sections to the New York Labor Law:
New York Labor Law Section 218-b
The first section of the HERO Act pertains to prevention of occupational exposure of airborne infectious diseases in the workplace. This section applies to all private employers in New York State.
The HERO Act covers and protects “employees,” which broadly encompasses full-time and part-time workers, independent contractors, domestic and homecare workers, day laborers, farmworkers, temporary and seasonal workers, indirectly those working for staffing agencies, contractors or subcontractors on behalf of an employer at any individual worksite. It also encompasses individuals delivering goods or transporting people on behalf of the employer and those working for digital applications or platforms.
New York Labor Law Section 27-D
The second section of the HERO Act establishes a requirement for private employers with 10 or more employees to permit the creation and administration of joint labor-management workplace safety committees. This section is effective November 30, 2021. The section allows but does not require an employer to establish such a committee. The full scope of employers’ obligation to establish a committee and what triggers that obligation is not clear and awaits regulatory guidance.
If a workplace safety committee is established, it must be composed of employee and employer designees, and at least two-thirds must be non-supervisory employees. Employee members must be selected by and from among non-supervisory employees. If a collective bargaining agreement is in place, the collective bargaining representative is responsible for selecting employee members.
The law requires covered employers to permit safety committee designees to attend training, without loss of pay, on the function of worker safety committees, rights established under this section, and an introduction to occupational safety and health. The law states that such training must not be longer than four hours.
If an employer already has a workplace safety committee that complies with the other requirements of Section 27-D, the employer is not required to create an additional safety committee to comply with the law.
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