On May 5, 2021, Governor Cuomo signed legislation requiring New York employers to have a plan to prevent exposure to airborne infectious disease in the workplace and providing for the creation of joint labor-management committees to address workplace safety. Sections 218-B and 27-D of the New York Labor Law were enacted pursuant to the new legislation.

New York Labor Law Section 218-B, effective June 4, 2021, mandates that private employers establish an airborne infectious disease exposure prevention plan (a “plan”) relevant to their industry. The Department of Labor (DOL), with input from the Department of Health, must publish model standards for all work sites, differentiated by industry, to protect the public and employees (Note: as of May 12, 2021, the DOL has not yet published the model standard). Employers may choose to adopt the model standard published by the DOL or create an alternative plan which meets or exceeds the minimum standards set forth in the DOL’s model standard. Section 218-B defines “employee” very broadly including, but not limited to, independent contractors, domestic workers, and seasonal workers. Additionally, the new law defines “work site” as “any physical space, including a vehicle, that has been designated as the location where work is performed.” The model standards or alternative plan must address various procedures and methods, including but not limited to, (i) employee health screenings, (ii) face coverings, (iii) required personal protective equipment applicable to the industry, (iv) regular cleaning and disinfecting of shared equipment and frequently touched surfaces, (v) effective social distancing for employees and consumers or customers, (vi) one or more designated supervisory employees to enforce compliance, and (vii) anti-retaliation provisions.

Once an employer adopts a plan it must (x) post the plan in a visible and prominent location within the worksite; (y) include the plan in its handbook, if it has one, and (z) provide the plan in writing to its employees in English and in the language identified as the primary language of such employee. Additionally, the plan must be provided to (i) a new employee upon her or his hiring, (ii) all employees following reopening after a period of closure due to airborne infectious disease, and (iii) any employee, independent contractor, collective bargaining representative, or the commissioner of the DOL or of Public Health, upon such person’s request.

The DOL commissioner may assess a civil penalty for (i) failure to adopt an airborne infectious disease exposure prevention plan (minimum $50 per day); or (ii) failure to abide by an adopted plan ($1,000-$10,000). The law also permits an employee to bring a civil action seeking injunctive relief against an employer alleged to have violated its plan in a manner that creates a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations or processes which have been adopted or are in use, by the employer at the work site, unless the employer did not and could not, with the exercise of reasonable diligence, know of the presence of the violation. While a court may award costs and reasonable attorneys’ fees to the employee, and order payment of liquidated damages of no greater than $20,000 (unless the employer proves a good faith basis to believe that the established health and safety measures were in compliance with the applicable airborne infectious disease standard). The law also states that where an action brought by an employee, or a defense, counterclaim, or crossclaim brought by an employer in response thereto, is found upon judgment to be completely without merit in law and undertaken primarily to harass or maliciously injure another, the court may in its discretion impose sanctions against the attorney or party who brought such action, defense, counterclaim or crossclaim.

The law prohibits retaliation against employees for (i) exercising their rights under the law section or under a plan; (ii) reporting violations of the law or a plan to any government entity, public officer or elected official; (iii) reporting an airborne infectious disease exposure concern to, or seeking assistance or intervention with respect to airborne infectious disease exposure concerns, to their employer, a government entity, public officer or elected official; or (iv) refusing to work where such employee reasonably believes, in good faith, that such work exposes the employee, other workers or the public, to an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with laws, rules, policies, orders of any governmental entity, including the minimum standards provided by the model airborne infectious disease exposure prevention standard, provided that the employee, another employee, or employee representative notified the employer of the inconsistent working conditions and the employer failed to cure the conditions or the employer had or should have had reason to know about the inconsistent working conditions and maintained the inconsistent working conditions.

New York Labor Law Section 27-D, effective November 1, 2021, mandates employers with at least 10 employees to permit employees to establish a joint labor-management workplace safety committee to raise health and safety concerns, and review policies implemented for workplace health and safety. The workplace safety committee must meet during work hours at least once a quarter. Furthermore, multiple committees may be created so that each geographically distinct worksite is represented. Each committee must be composed of employee and employer designees, provided at least two-thirds are non-supervisory employees.

For further information or guidance on how this law may affect your business, or for assistance in revising your policies and procedures in accordance with this law, please contact David Paseltiner at dpaseltiner@jaspanllp.com or Jessica Baquet at jbaquet@jaspanllp.com.