Tag: workplace safety committees

Workplace Safety Committee Rules

NYS DOL Proposes Workplace Safety Committee Rules

The New York HERO Act included provisions enabling workers to form workplace safety committees at their jobs. Those provisions had a November 1, 2021 effective date, and the NYS Department of Labor had promised additional guidance by then. Finally, on December 22, 2021, the DOL issued proposed workplace safety committee rules. Where does this leave employers faced with complying with the HERO Act’s workplace safety committee requirements?

Procedural Status & Impact

As “proposed” rules, the DOL’s latest word on workplace safety committees initially has no formal legal impact. The DOL is scheduled to hold a hearing on the proposed workplace safety committee rules on February 9, 2022. Interested parties may submit written comments on the proposed rules through February 14, 2022. At some point after that date, the DOL may finalize rules regarding the HERO Act‘s workplace safety committee requirements.

Until the DOL publishes final rules, employers face a compliance dilemma. The statutory workplace safety committee provisions have been, at least arguably, in effect since November. Some employers have undoubtedly attempted to comply with the law before these proposed regulations were available. Many of the resultant workplace safety committees may not satisfy the parameters of the proposed regulations, which were not wholly predictable from the statutory language.

There may be a reasonable debate whether employers are legally subject to the workplace safety committee portion of the HERO Act before the DOL finalizes its regulations. Indeed, the statute states that “The commissioner [of labor] shall adopt and amend rules and regulations to effectuate the provisions and purposes of this section.” Until such regulations have been adopted, has the law been effectuated?

Establishment of Workplace Safety Committees

When

Since the HERO Act became law, there has been uncertainty whether all covered employers (private employers with 10+ employees in NYS) must form a workplace safety committee. The DOL’s proposed rules indicate that employers need only recognize a workplace safety committee after at least two employees have requested one in writing.

Upon receiving such requests, employers must respond “with reasonable promptness.”

Interestingly, after one workplace safety committee has been formed at a worksite, the proposed rules provide that the employer must deny subsequent requests and refer them to the existing workplace safety committee.

Where

The HERO Act limits workplace safety committees to one per “worksite.” The proposed workplace safety committee rules address the meaning of “worksite” at length.

Worksites may be a single location or multiple that are in close proximity. However, separate buildings or facilities not close enough together or run distinctly may be considered different worksites. Despite some bright lines, the proposed rule seemingly leaves enough room for ambiguity to frustrate many employers.

The worksite of employees who travel, telecommute, etc., is “the worksite to which they are assigned as their employer’s home base, from which their work is assigned, or to which they report.”

Notably, workers at worksites with less than 10 employees could still form workplace safety committees if the employer has at least 10 employees statewide.

The proposed rules make an exception for “temporary worksites,” where no employee works for less than 20 days. The employer need not recognize a workplace safety committee at such a location.

Who

The law requires that at least two-thirds of the committee’s members be “non-supervisory employees.” The proposed rules define “non-supervisory employees” as those who do not “perform supervisory responsibilities, which includes but is not limited to the authority to direct and/or control the work performance of other employees.” Curiously, the rules further state that non-supervisory employees exclude “managerial and executive employees” without defining those categories.

The DOL proposes a cap on the number of members of a workplace safety committee. Any committee is limited to the lower of 12 members or one-third of the total number of employees at the worksite. The minimum number is three members.

Following the statutory language, the proposed rules state:

At a worksite where there is a collective bargaining agreement in place, the collective bargaining representative shall select the employee representatives, who may be any non-supervisory employee covered by the collective bargaining agreement.

On the other hand:

Non-supervisory employees at a worksite without a collective bargaining agreement in place shall be selected by and amongst the employer’s non-supervisory employees as determined by the non-supervisory employees of the employer.

The DOL provides examples of possible selection methods, including “self-selection,” “nomination by co-workers,” and “elections.”

Surprisingly, the rules don’t specifically address who determines how many non-supervisory employees will be on the committee or who selects them. It only states that the employer must appoint a representative to serve as co-chair. But this employer representative may be “a non-supervisory employee, an officer, the employer, or other representative.” And, according to the proposed rules, “No non-supervisory employee may be a member of two different workplace safety committees for the same employer.”

Committee Activities

The HERO Act provides an assortment of functions for workplace safety committees to serve. The proposed rules offer some effort to clarify them.

The rules go so far as to suggest a workplace safety committee may “establish rules or bylaws,” which “may include but are not limited to procedures for the selection of new members, terms of members, and the training of new members.” However, the DOL cautions that any bylaws that exceed or conflict with the HERO Act’s grant of responsibilities would be ineffectual.

Failing alternative adopted rules or procedures, the proposed regulations provide that committee actions would be taken only by majority vote.

The rules reiterate statutory provisions regarding paid meeting and training time. The employer must pay committee members for participating in meetings of up to two hours per quarter and training of up to 4 hours per year. The DOL suggests committee members can meet or otherwise work on committee matters for more than two hours per quarter outside of work hours and without pay, unless the employer agrees to provide payment.

Employer Obligations

Although the proposed workplace safety committee rules don’t specifically address the committees’ statutory rights to review workplace safety and health policies, they do provide that employers must respond to requests for such policies “within a reasonable amount of time.”

Employers must similarly “respond, in writing, to each safety and health concern, hazard, complaint and other violations raised by the workplace safety committee or one of its members within a reasonable time period.”

Companies must also notify, in advance, their workplace safety committee of any visits by an outside government official enforcing safety and health standards.

What Should New York Employers Do Now?

The best news about the proposed workplace safety committee rules is that they don’t suggest employers must do anything before receiving written requests from at least two employees about the creation of a committee. However, the big questions come if you receive such requests.

Private employers with at least 10 employees in New York are arguably required to allow employees to form a workplace safety committee now. But the path to doing so is fraught.

Employers could attempt, where feasible, to follow the proposed rules. However, it seems highly unlikely that the proposed rules will be adopted in precisely their current form. There are simply too many holes in the regulations for them to stand as proposed. Frankly, one wonders if the DOL even intends, as it often does, that its proposed rules will become the final rules. Perhaps, they just finally issued something to get the process started in the face of a direct legislative mandate that they were already tardy in satisfying.

But employers who wish to ignore the proposed rules in favor of the statutory text will find that lacking in relevant respects. Even the Legislature knew that the HERO Act alone wouldn’t provide a workable framework for creating workplace safety committees. They affirmatively passed that responsibility to the DOL. Which begs a question. . . .

Is the Workplace Safety Committee Component of the HERO Act Legally Enforceable?

I have serious doubts. The statute itself is likely too vague to enforce. Can that be saved by “clarifying” DOL regulations? Perhaps. But is it possible for the DOL to issue regulations that are both consistent with the statutory language and not inconsistent with other legal principles?

The references to worksites with collective bargaining agreements in place seem particularly problematic. Here, the Legislature missed the mark in critical respects. First, it totally ignored the reality that many worksites have multiple bargaining units, potentially with separate unions representing them and/or with multiple collective bargaining agreements. Then there’s the matter of unrepresented non-supervisory employees at worksites with bargaining units. The law and the proposed rules seem to grant the bargaining representative the right to dictate whether such unrepresented employees have any participation in the workplace safety committees. Plus, the law peculiarly relies on the existence of a collective bargaining agreement. But what if the agreement has expired or a representative has been selected, but not yet negotiated a first contract? Does the bargaining representative have no role in determining the workplace safety committee members? Since private-sector collective bargaining is primarily regulated by federal labor laws, is there a preemption question?

Time will tell, but I would be surprised if we don’t see serious challenges to the HERO Act’s whole workplace safety committee scheme. In the meantime, employers facing the formation of workplace safety committees are strongly encouraged to consult with experienced labor and employment counsel.

 

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2021 Fall New York Employment Law Update

Fall 2021 New York Employment Law Update (Webinar Recap)

On October 26, 2021, I presented a complimentary webinar entitled “Fall 2021 New York Employment Law Update”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

  • Minimum Wage Increases
  • Employee Marijuana FAQs
  • Workplace Safety Committees
  • Vaccine Mandates
  • and More!

We’re still eagerly awaiting guidance on important legal changes that will impact many New York employers. But we’ve also had recent developments regarding the minimum wage and employee marijuana use.

This webinar addresses the latest on the anticipated OSHA vaccine mandate and new EEOC guidance on accommodations for employees seeking exclusions based on their religious beliefs. A vaccine mandate is already in place for some employers, including federal contractors.

With a November 1, 2021 effective date, we also discuss what the new workplace safety committee requirements may mean for covered employers.

Get the latest on these topics and more.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “Fall 2021 New York Employment Law Update”

COVID-19 has added to an already complex compliance area. Both the state and federal governments continue to implement new requirements. And more are on the way. This webinar will give you an overview on what you need to know now and what you should be watching for in the near future.

Don’t Miss Our Future Webinars!

Click here to sign up for the Horton Law email newsletter to be among the first to know when registration is open for upcoming programs! And follow us on LinkedIn for even more frequent updates on important employment law issues.

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.