The New York State Department of Labor has published proposed regulation interpret and define more precisely the contours of the joint employer-union safety committees at work of the HERO law. We summarize the proposed regulations below.
Context of the HERO law
As we previously reported here, New York City enacted the Basic Health and Rights Act – the “HERO Act” – on May 5, 2021 in an effort to address COVID-19 safety concerns at the location. of work. But the law is much more than a law related to COVID-19 and has two basic elements.
First, the law requires employers to adopt and disseminate health and safety plans that they must activate when the New York State Health Commissioner designates a disease as a “highly contagious communicable disease that presents a disease. serious risk of damaging public health ”. At present, the Commission has made that designation regarding COVID-19 and employers have been required to activate their health and safety plans until at least January 15, 2022 (the designation has been extended month-to-month since September 2021). NYSDOL has released separate interpretive guidance via FAQs and HERO plan templates, which we discussed. here.
Part 2 of the HERO Act requires employers with 10 or more employees to allow employees on a job site to establish a joint workplace safety management committee. This part of the law entered into force on November 1, 2021.
The HERO Act also required NYSDOL to adopt rules and regulations to implement its provisions and objectives. NYSDOL has now taken the first step by proposing regulations that provide new definitions and rules applicable to workplace safety committees.
Summary of the proposed workplace safety committee regulation
The proposed regulation, if adopted, would add a new subchapter to Part 850 of Title 12 of the New York Codes, Rules and Regulations (“NYCRR”), which consists of four sections: (1) Purpose; (2) Definitions; (3) Safety at work committees; and (4) Obligations of the employer.
the first section – “Objective”—Places that these regulations are made in accordance with Section 27-d of the New York Labor Act and cover workplace safety committees.
the second section – “Definitions”– includes several proposed definitions which clarify the contours of occupational safety committees. Highlights of this section include:
Employee coverage threshold – To reach the 10 employee threshold, employers need only count those they employ in New York State and not elsewhere. It also requires employers to have the following employees:
Not only full-time employees, but also part-time, newly hired, temporary or seasonal employees;
Employees jointly employed by more than one employer, even if they are not on an employer’s payroll.
Employees who may be on leave with or without pay, including sick leave, authorized leave, disciplinary suspension or any other type of temporary absence, provided the employer reasonably expects the employee later returns to active employment.
Employees whose primary duties involve travel, who telework, who are stationed or who work primarily outside of the employer’s primary location are assigned to the workplace from which their work is assigned or to which they relate.
Employers should note that this threshold of 10 employees is relevant to whether an employer should allow the formation of staff committees. Workplaces with fewer than 10 employees can form a committee as long as the employer has 10 or more employees statewide.
Non-supervisory employees – Discussed below, the HERO Act requires that any workplace committee: (i) be made up of designated employees and employers, provided that at least 2/3 of the committee members are non-employees. supervisors, (ii) be co-chaired by both a representative of the employer and an employee without supervision; and (iii) have its employees appointed as members chosen by and from among non-supervisory employees. The proposed regulation defines an “unsupervised employee” as an employee “who does not exercise supervisory responsibilities, which includes, but is not limited to, the power to direct and / or monitor the job performance of the company. other employees ”. The definition also excludes “managerial and managerial employees”.
Construction sites – The HERO law allows employees to form an occupational safety committee on a single site, and employers can have more than one site. The proposed regulation dissects this concept of “work site”.
A “workplace” means “a single physical location where services, operations or other activities are carried out” and “[g]geographically distinct sites ”means“ two or more sites operated by the same employer which do not constitute a single site ”.
The definition of “site” also includes non-traditional locations. To explain this concept, the proposed regulation is inspired by the WARN law definition of a “single job site”, noting that there may be several separate sites at the same location or that a separate site may exist. in several buildings or locations that are not physically connected. but located quite close to each other.
Temporary work sites are not considered work sites under the HERO Act and are defined as workplaces “where no [e]the employee works less than twenty working days. (We note that there may be a draft error, which we expect NYSDOL to correct.)
the third section – “Safety committees at work” provides more details on the creation, composition and functioning of workplace committees. Highlights of this section include:
the fourth section – “Employer’s obligations”—Covers employers’ obligations, including that employers must:
Respond, in writing, to each safety and health issue, hazard, complaint and other violation raised by the Workplace Safety Committee or one of its members within a reasonable time.
Respond to requests from the committee or any of its members for policies or reports that relate to the functions of the committee within a reasonable timeframe. The regulations, however, specify that employers are not required to “disclose information or documents” where such “disclosure is prohibited by law, contains an employee’s personally identifiable information. [under NYLL §203-d], or is outside the scope of the information or documentation set forth in the [HERO Act]. “
Notify, to the extent possible and not prohibited by law, the Occupational Safety Committee of any site visit by a government agency applying health and safety standards.
Appoint an employer representative to the workplace safety committee to act as co-chair, who can be “an employee, officer, employer or other non-supervisory representative”. It is not clear what the proposed regulation means by “employer” or “other representative” and to what extent employers can interpret this language.
Allow members of the workplace safety committee to attend one meeting for up to two hours per quarter and formal training scheduled by the committee, the attendance of which is considered hours worked.
Refrain from interfering with the performance of the functions of the occupational safety committee or of its members.
A missed opportunity?
The proposed regulations provide much needed clarification in certain areas for employers who have found it difficult to understand the scope of this new law and their obligations in recognizing these committees and allowing them to operate. However, the proposed regulation does not provide the clarity sought on certain salient issues.
For example, the law authorizes the committee to conduct certain “reviews”, including: (1) policies implemented by employers regarding occupational safety and health under the New York Labor Act; (2) “the adoption of any workplace policy in response to any health or safety law, ordinance, rule, regulation, decree or other related directive”; and (3) “any report filed by the employer concerning the health and safety of the workplace in a manner compatible with any provision of the law”. In the first case only, the law specifies that the committee can also “make comments” on such a policy. Is the committee’s mandate on these issues limited to review (and feedback)? Also, to what extent can a committee interpret what constitutes a health and safety policy or report?
Further, the NYSDOL has also not clarified to what extent and in what manner the committee or its members may participate in any site visit by a government entity responsible for enforcing health and safety laws (a component of the HERO Act), nor does it clarify how the committee or its members may raise health and safety concerns, hazards, compliance, and violations (another element of the HERO Act). These site visits and complaints often present issues that require employers to respond with caution and sensitivity in order to ensure compliance while minimizing disruption to its operations.
The proposed regulation also states that employers must “respond” within a reasonable time to the committee when it raises a health or safety complaint or requests a report or policy that relates to the committee’s functions, but it does not define nor does it otherwise explain what constitutes an adequate response under the law, including what action, if any, must be taken, if any, (other than those required by other laws or regulations).
Without further clarity from NYSDOL on these issues, employers will have to make a good faith effort to comply with the law. To this end, employers who receive an application for committee recognition should consider working proactively with any committee formed to establish expectations regarding the committee’s mandate and the employer’s obligations to work with and within the committee. respond, and otherwise join such committees to ensure a healthy and safe workplace.
It is important to remember that these are proposed regulations at this point, which means that they have not yet been adopted and that it is still possible to submit comments. Additionally, a public hearing on these proposed regulations is scheduled for February 9, 2022, after which NYSDOL will work to adopt the final regulations. While we would expect there to be legal challenges to the law, including on the basis that it could conflict with national labor relations law, employers must be prepared to come into compliance. once the regulations are finalized. We will continue to monitor these regulations and provide updates as we receive them.
© 1994-2022 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC All rights reserved.National Law Review, Volume XII, Number 4