As we discussed in our previous blog post, Governor Cuomo recently signed the NY HERO Act, which (i) provides for the creation of joint labor-management committees to address workplace safety (New York Labor Law Section 27-D) and (ii) requires New York employers to have a plan to prevent exposure to airborne infectious disease in the workplace (New York Labor Law Section 218-B). This blog post focuses on section 27-D of the New York Labor Law regarding workplace safety committees.

To what businesses does NY Labor Law Section 27-D apply?

This law defines “employers” as “any person, entity, business, corporation, partnership, limited liability company, or an association [other than the state or any subdivision, agency, or instrumentality thereof] employing at least ten employees.” Additionally, the law defines “employees” as “all employees in the state, except for employees of the state, any political subdivision of the state, a public authority, or any other governmental agency or instrumentality.”

What does NY Labor Law Section 27-D require for employers?

The new law requires employers 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. An employer must allow the designees to attend training (without loss of pay) on the function of worker safety committees, the rights established under this new law, and an introduction to occupational safety and health. Furthermore, employers are prohibited from (i) interfering in the selection of employees who shall serve on such committee; (ii) interfering with such employees’ performance of the duties for the workplace safety committee; and (iii) retaliating against any employees participating in the establishment or activities of a workplace safety committee. Employers who violate the anti-retaliatory provisions of this law may be subject to civil penalties.

Who can serve on a workplace safety committee?

Each workplace safety committee must be composed of employee and employer designees, with at least two-thirds of the committee being non-supervisory employees. Those employee members of the committee shall be selected by, and from among, non-supervisory employees. If a collective bargaining agreement is in effect, the collective bargaining representative shall be responsible for the selection of employees to serve as members of the committee. Each committee must be co-chaired by an employer representative and a non-supervisory employee representative. Furthermore, multiple committees may be created so that each geographically distinct worksite is represented.

What can a workplace safety committee do?

Under the law, each committee and member is authorized to do the following, including but not limited to:

(a) Raise health and safety concerns, hazards, complaints and violations to the employer to which the employer must respond.

(b) Review any policy put in place in the workplace required by any provision of the New York labor law or workers’ compensation law and provide feedback to such policy in a manner consistent with any provision of law.

(c) Review the adoption of any policy in the workplace in response to any health or safety law, ordinance, rule, regulation, executive order, or other related directive.

(d) Participate in any site visit by any governmental entity responsible for enforcing safety and health standards in a manner consistent with any provision of law.

(e) Review any report filed by the employer related to the health and safety of the workplace in a manner consistent with any provision of law.

(f) Regularly schedule a committee meeting during work hours at least once a quarter.

How does NY Labor Law Section 27-D affect collective bargaining agreements?

This law does not diminish the employee rights and remedies available under a collective bargaining agreement. Furthermore, the new law can be waived within any collective bargaining agreement, provided that the waiver explicitly references this law.

When is NY Labor Law Section 27-D effective?

The new law is effective November 1, 2021.

An update on the model standards to be issued by the Department of Labor (DOL):

As of June 22, 2021, the DOL has not yet published the model standards on airborne infectious disease prevention plans. Employers may choose to adopt the industry-specific 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.

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.