Tag: safety

NY HERO Act Amendments

NY HERO Act Amendments Reduce Employer Burdens

When Governor Cuomo originally signed the New York HERO Act into law, he indicated he expected the Legislature to make changes before the effective date to address concerns from the business community. On June 11, 2021, he approved the anticipated NY HERO Act amendments. While still creating new employee rights and employer obligations, the amendments provide some relief from originally overbroad legislation.

(Click here for a detailed analysis of the original legislation.)

We’ll look at the changes to the two distinct subjects of the NY HERO Act in turn.

Airborne Infectious Disease Exposure Prevention Plans

The NY HERO Act amendments include clarifications regarding the airborne infectious disease exposure prevention plans that employers must adopt.

Covered “Work Sites”

As amended, the law will take a more narrow view of what constitutes a “work site” where companies must police safety measures during a disease outbreak. The previous definition–“any physical space, including a vehicle, that has been designated as the location where work is performed”–is now limited by the phrase “over which an employer has the ability to exercise control.”

There is also a new (redundant?) proviso that “[t]he term shall not include a telecommuting or telework site unless the employer has the ability to exercise control of such site.”

Model Plans

The original legislation required the NYS Departments of Labor and Health to create model airborne infectious disease exposure prevention standards by industry. Some new wording expands on that requirement. It indicates that different standards may exist among “industries representing a significant portion of the workforce, or those with unique characteristics requiring distinct standards. . . .” The amendments also require “a general model airborne infectious disease exposure prevention standard applicable to all worksites not included in the specific industry standards.”

Implementation

The amendments expressly address important timing issues. The model standards are due by July 5, 2021, from the State. But employers will not have to implement them immediately. Instead, they will have 30 days after the applicable standard is available.

Once a company adopts the model plan (or its own version), it will have 30 days to provide a copy to every employee. Employers must also provide the plan to new hires at the beginning of employment.

Litigation and Penalties

The NY HERO Act amendments reduce the potential penalties for violations of the airborne infectious disease exposure prevention requirements. They also now require employees to give their employer notice of potential violations before commencing a lawsuit. In most cases, the employer will have 30 days to cure the alleged deficiency.

Workplace Safety Committees

The second component of the NY HERO Act gives employees a new right to form workplace safety committees that employers must recognize.  The amendments prevent a broad interpretation that may have enabled workplace safety committees to control issues beyond health and safety.

Authorized Role

In addition to workplace health and safety tasks, the original NY HERO Act legislation would have permitted workplace safety committees to review any policy required by the New York Labor Law or Workers’ Compensation Law, without regard for whether the policy had anything to do with health or safety. This provision seemingly would have included vacation policies, sexual harassment policies, and paid family leave policies, among others. However, as amended, the law now limits the review to policies “relating to occupational safety and health.” It still remains to be seen, however, what that phrase will mean to the Department of Labor.

Multiple Worksites

In one respect the amendments potentially add more confusion than they do clarification. New language says that employers need only permit one workplace safety committee per worksite. This addition suggests that there may be multiple committees spread across worksites. Yet, “worksite” is not defined for this portion of the NY HERO Act. The definition in the airborne infectious disease exposure prevention section of the law doesn’t technically apply to the workplace safety committee section. And that definition probably wouldn’t be very helpful anyway. It suggests, for example, that each vehicle owned or controlled by the employer is a “work site.”

Quarterly Meetings

The law provides that workplace safety committees may meet at least once per quarter during work hours, presumably meaning with pay. In an apparent attempt to prevent abuses, the amendments say that the meetings “shall last no longer than two hours.”

The question remains, are the committees, therefore, only permitted to meet for two hours per quarter? Or multiple times per quarter, as long as no meetings last more than two hours?

Training

There’s also a new time limit on required training. The original legislation provided that committee “designees” could attend training “on the function of worker safety committees, rights established under this section, and an introduction to occupational safety and health” “without suffering a loss of pay.” The NY HERO Act amendments limit the training to four hours.

Many Unanswered Questions

Employers still can’t do much to begin complying with the NY HERO Act until the State issues model standards and additional regulatory guidance. But they must be prepared to act quickly when more information becomes available. The airborne infectious disease exposure prevention plan may need to be in place by early August. And employees can start workplace safety committees beginning November 1, 2021.

 

We’ll be presenting a complimentary webinar once the model airborne infectious disease exposure prevention standards are available. Register for our email newsletter to receive the webinar announcement and other updates regarding the New York HERO Act.

New York Safety Plan Template

A Closer Look at the COVID-19 New York Safety Plan Template

As the State of New York begins to reopen, it is requiring all businesses to develop a written COVID-19 safety plan. The State has provided a safety plan template to facilitate this requirement. Businesses don’t have to use the template. But they should at least reference it in ensuring they include the necessary components in their plans.

Reopening Requires a Written Safety Plan

Each New York business location must adopt and follow a safety plan that outlines how the business will fight the spread of COVID-19. Companies don’t have to submit their plans to any government agency for approval. But every business must post its plan at each location. The New York State Department of Health or local health or safety authorities have the right to review the plan during an inspection.

New York is issuing industry-specific reopening guidelines. These documents reflect extensive requirements on businesses that choose to reopen as permitted under the State’s phased reopening plan. Every business should consult the guidelines in preparing a coronavirus safety plan.

For more information about industry-specific reopening guidelines, click here.

Essential businesses that are not yet covered by industry-specific guidelines, click here.

To access the NY Forward Safety Plan Template, click here.

The New York Forward Safety Plan Template

The New York Safety Plan Template is a generic template that any business can complete. Alternatively, a company could use the template as a guide to creating its plan in a different format.

Part I – People

The first part of the templates starts with a list of physical distancing terms that employees must comply with. The business must agree to the following:

  • Ensuring a 6-foot distance between personnel, unless safety or a core function of the work activity requires a shorter distance.
  • If personnel are less than 6 feet apart from one another, they must wear acceptable face coverings.
  • Only one individual will occupy small spaces at a time unless all occupants are wearing acceptable face coverings.
  • The occupancy will be kept under 50% of the maximum capacity if more than one individual occupies the small spaces.
  • Social distancing posts/markers must be made to signify 6 feet of spacing in commonly used areas on the site.
  • In-person gatherings must be limited as much as possible, and tele- or video-conferencing should be utilized whenever possible.
  • Essential in-person gatherings should be held in open, well-ventilated spaces with appropriate social distancing among participants.
  • There should be designated areas for pick-ups and deliveries.

Then, Part I asks the business to fill in specific information pertinent to its daily operations.

  • The template asks the business to list everyday situations that may not allow for 6 feet of distance between individuals and how the business intends to ensure employee safety in such circumstances.
  • It also asks how the business will achieve engagement with customers and visitors with physical distancing requirements.
  • Part 1 concludes by asking the business how it will manage industry-specific physical, social distancing.

Part II – Places

The second part of the safety plan template has three sections: “Protective Equipment,” “Hygiene and Cleaning,” and “Communication.” The portion of the template requires the business to explain how it intends to keep the workplace clean to protect employees.

Protective Equipment

Part II.A. of the New York safety plan template requires businesses to ensure that employees comply with protective equipment requirements. The business must agree to the following terms:

  • Employers must provide employees with an acceptable face covering at no cost to the employee and have an adequate supply of coverings in case of replacement.

After acknowledging the above, the business must indicate how it plans to comply with the requirement.

  • Face coverings must be cleaned or replaced after use or when damaged or soiled, may not be shared, and should be adequately stored or discarded.

The business must then explain its policy for ensuring that the PPE is appropriately cleaned, stored, and discarded.

  • Limit the sharing of objects and discourage touching of shared surfaces; or, when in contact with shared objects or frequently touched areas occurs, wear gloves(trade-appropriate or medical); or sanitize or wash hands before and after contact.

After this item, the business must list common objects shared between the employees and how it plans to ensure the safety of the employees when using the commonly shared objects.

Hygiene and Cleaning

Part II.B. of the template requires businesses to comply with hygiene and cleaning requirements. The business must agree to the following terms:

  • Adhere to hygiene and sanitation requirements from the Centers for Disease Control and Prevention (CDC) and the Department of Health (DOH) and maintain logs on site that document date, time, and scope of cleaning.

After this term, there is space to identify who will maintain the cleaning log and where they will keep it.

  • Provide and maintain hand hygiene stations for personnel, including handwashing with soap, water, and paper towels, or an alcohol-based hand sanitizer containing 60% or more alcohol for areas where handwashing is not feasible. 

Then the business must indicate where on site the appropriate sanitizing products will be located, and how it will promote hand hygiene.

  • Conduct regular cleaning and disinfection at least after every shift, daily, or more frequently as needed, and frequent cleaning and disinfection of shared objects (e.g., tools, machinery) and surfaces, as well as high transit areas, such as restrooms and common areas, must be completed. 

Then the business must describe its policies that will ensure that regular cleaning and disinfecting are occurring on the worksite.

Communication

Part II.C. of the template prompts businesses to comply with communication requirements. The business must agree to:

  • Post signage throughout the site to remind personnel to adhere to proper hygiene, social distancing rules, appropriate use of PPE, and cleaning and disinfecting protocols.
  • Establish a communication plan for employees, visitors, and customers with a consistent means to provide updated information.
  • Maintain a continuous log of every person, including workers and visitors, who may have close contact with other individuals at the worksite; excluding deliveries that are performed with appropriate PPE or through contactless means; excluding customers, who may be encouraged to provide contact information to be logged but are not mandated to do so.

After these items, the safety plan template asks the business to identify the employee(s) that will be in charge of maintaining the log and where it will be located.

This part of the safety plan template concludes by explaining the appropriate protocol that employers must agree to follow when an employee tests positive for COVID-19. Specifically, they must “immediately notify state and local health departments and cooperate with tracing efforts . . . while maintaining confidentiality.” The company must indicate which employee(s) will be responsible for notifying state and local health departments if an employee tests positive for COVID-19.

Part III – Process

Part III of the safety plan template has two sections: “Screening” and “Contact Tracing and Disinfection of Contaminated Areas.”

Screening

Part III.A. of the template addresses mandatory health screenings. Businesses must implement mandatory health screening assessments before employees begin working each day. They must ask workers and essential visitors whether they have experienced:

  1. COVID-19 Symptoms in the 14 days,
  2. a positive COVID-19 test in the past 14 days, and/or
  3. close contact with confirmed or suspected COVID-19 cases in the past 14 days.

The business must document these responses and review them daily.

The safety plan template requires the business to explain its daily health and screening practices. This information should include who will perform the screening practices, how the individuals will be trained, and the necessary PPE equipment the individuals will require.

Contact Tracing and Disinfection of Contaminated Areas

Part III.B. of the template requires businesses to ensure that its employees comply with contact tracing and disinfection requirements. Each business must “Have a plan for cleaning, disinfection, and contact tracing in the event of a positive case.”

Then the template requires the business to describe how it will clean the contaminated areas if an employee tests positive for COVID-19. It must identify which effective COVID-19 products the business needs and how the business plans to acquire them. The company must also identify how it will trace and inform close contacts if an employee tests positive for COVID-19.

Part IV – Other

Part IV of the New York Safety Plan template simply provides space for the business to provide additional information about its specific COVID-19 safety plan. Companies should review applicable industry-specific guidelines to determine what other obligations they must satisfy.

This portion of the template ends by requiring the business to agree that it will stay up to date on industry-specific guidance, by consulting the NY Forward website.

The .pdf version of the NY Forward Safety Plan Template includes links to other government websites providing general information, workplace guidance, personal protective equipment guidance, and cleaning and disinfecting guidance.

What Your Business Should Do Now

If your business is operating now with any on-premises employees, it must have a COVID-19 safety plan in place. You can use the New York safety plan template document or come up with a different format. However, your plan must address the necessary components reflected in state and federal guidelines for reducing the transmission of the novel coronavirus. And you must continue to monitor developments from various governmental authorities to ensure ongoing compliance.

 

Horton Law continues to monitor the evolving reopening requirements for all New York businesses. Sign up for our email newsletter to receive our latest blog posts and announcements of upcoming webinars on this topic. You can also follow us on LinkedIn for even more frequent updates.

Post-Accident Drug Testing OSHA

OSHA Permits Post-Accident Drug Testing

On October 11, 2018, the U.S. Occupational Safety and Health Administration (OSHA) issued a clarification of its position on post-accident drug testing. The new guidance addresses commentary that OSHA included with a May 2016 anti-retaliation rule. OSHA now asserts that the rule “does not prohibit . . . post-incident drug testing.”

[Note that the Drug-Free Workplace Act does not require any employers to drug test employees.]

29 C.F.R. § 1904.35

That’s the citation for the rule OSHA amended on May 12, 2016, to prohibit employers from retaliating against employees for reporting work-related injuries or illnesses.

Specifically, 29 C.F.R. § 1904.35(b)(1)(iv) states: “You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”

The rule itself does not mention drug testing. But OSHA’s 2016 commentary accompanying it did.

At that time, the agency wrote: “OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting.” It then went on to say, “this final rule does not ban drug testing of employees. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.”

OSHA’s 2016 commentary included the following supposed standard: “To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

2018 “Clarification”

It’s hard to argue that OSHA’s recent announcement clarifies the above language from the 2016 commentary. Instead, it interprets the text of the rule itself, which never mentioned drug testing in the first place. Obviously, the current administration in D.C. has a different take on this issue than the previous one.

In the October 11, 2018 memorandum, OSHA explains that “Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”

To emphasize this change in position, the new OSHA directive adds that “To the extent any other OSHA interpretive documents could be construed as inconsistent with the interpretive position articulated here, this memorandum supersedes them.” It then specifically identifies four OSHA documents from October and November 2016.

When to Conduct Post-Accident Drug Testing

OSHA’s new guidance memorandum approves of the following forms of drug testing:

  • Random drug testing.
  • Drug testing unrelated to the reporting of a work-related injury or illness.
  • Drug testing under a state workers’ compensation law.
  • Drug testing under other federal law, such as a U.S. Department of Transportation rule.
  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

The last item in this list seems to set a new standard for post-accident drug testing under the anti-retaliation rule. It essentially replaces the 2016 “likely to have contributed to the incident” and “accurately identify impairment caused by drug use” analysis with a more straightforward permissive approach. That is, OSHA now suggests that post-accident testing is presumptively lawful. But if the employer only tests the employee who reported the injury, then this would imply a retaliatory purpose.

In other words, the takeaway for employers is that you generally can drug test employees following a workplace incident. But don’t do it in a way that only targets the reporter, hence discouraging people from reporting safety issues.

Employers May Revisit Post-Accident Drug Testing Protocols

Companies that changed their practices in response to the 2016 rule and OSHA commentary may now reconsider their approach.

To be clear, OSHA’s new interpretation does not require employers to conduct post-accident drug testing. Rather, the clarification relieves employers of much of the concern and uncertainty that the 2016 OSHA commentary created.

Employers who do utilize post-accident drug testing should do so rationally and consistently. Ad hoc or inconsistent testing could lead employees to complain of retaliation under OSHA rules or other legal authority.

 

New York employers should also read “Drug Testing New York Employers.”