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The New York Health and Essential Rights Act (“HERO Act”) requires New York businesses to adopt extensive new workplace health and safety measures to prevent the spread of airborne infectious disease. Under Section 1 of the HERO Act, covered employers must adopt an airborne infectious disease prevention plan. Employers are only required to actually implement this plan when the New York State Commissioner of Health designates an airborne infectious disease as a serious risk to the public health. On September 6, 2021, the Commissioner of Health designated COVID-19 as an airborne infectious disease that is a serious risk to the public health triggering the implementation of the protections of the HERO Act. This designation has required all applicable employers to implement workplace safety plans specifically to address the COVID-19 pandemic. This designation has been extended multiple times, and the latest extension was issued on January 15, 2022, extending the designation through at least February 15, 2022: hero_act_designation_extension_4.pdf (ny.gov).
While Section 1 of the HERO Act has been in effect as noted above, the HERO Act Section 2 guidance was not issued immediately. Section 2 of the HERO Act requires employers who employ at least ten (10) employees to allow employees to form a workplace safety committee. The New York Department of Labor (“DOL”) had intended to provide guidance on Section 2 of the HERO Act prior to November 1, 2021 but such guidance was delayed. On December 22, 2021, the DOL issued a notice of proposed rulemaking relating to Section 2 of the HERO Act with proposed workplace safety committee regulations.
On February 9, 2022, the DOL is holding a virtual public hearing to obtain feedback from stakeholders regarding the proposed regulations.
Stakeholders can register for the public hearing at the following site: Workplace Safety Committee Hearing (ny.gov)
The proposed regulations can be found at the following link: 12-nycrr-part-850-dol-proposed-12.22.21.pdf, and they provide for the following:
An “employer” is defined as any person, business, or entity employing at least ten (10) employees – but it does not include the State or a governmental agency. Part-time, newly hired, temporary, and seasonal employees are considered to be employees.
Workplace safety committees may be established for a worksite following a written request by at least two (2) non-supervisory employees who work at the site.
Such committees shall be comprised of not less than two (2) non-supervisory employees and not less than one (1) employer representative. Most committees shall have a maximum of twelve (12) members.
Once a committee has been established, an employer shall respond, in writing, to each health and safety concern, hazard, complaint, and other violations raised by the committee or a member within a reasonable time frame.
An employer shall not interfere with the performance of the duties of the committee or its members.
As noted, these regulations are still in proposed form and will be addressed more fully during the upcoming public hearing.
Our Firm has extensive experience counseling health care providers on labor and employment compliance requirements, as well as preparing and implementing applicable policies. If you have any questions related to this Legal Briefing, please contact any member of our Firm at 876-946-1361. Please note that any embedded links to other documents may expire in the future.
New York Governor Kathy Hochul recently signed two bills into law designed to protect personal and domestic employees working in a private home in the State. Both laws are already effective.
The first law amended the New York Executive Law/Human Rights Law by removing the exclusion of domestic workers from the definition of “employee.” As a result of the legal modifications, domestic workers will be protected from workplace harassment and discrimination (whether it is on the basis of age, race, religion, color, national origin, sexual orientation, military status, sex, disability, marital status, and similar classifications) like other workers. The previous existing law excluded domestic workers from many of the protections of the New York State Human Rights Law.
The second new law amended the New York Workers Compensation Law to extend paid family leave benefits to domestic workers. More specifically, the new law provides that personal and domestic employees who work at least 20 hours per week and are employed on each of at least 30 days in any calendar year are covered under the Paid Family Leave and Temporary Disability Insurance programs. The previous existing law provided that domestic workers needed to work at least 40 hours per week in order to be eligible – while other employees (including part-time and seasonal employees) only needed to work 20 hours per week to be eligible.
Our Firm has extensive experience counseling health care providers on labor and employment compliance requirements, as well as preparing and implementing applicable policies. If you have any questions related to this Legal Briefing, please contact any member of our Firm at 876-946-1361. Please note that any embedded links to other documents may expire in the future.
On President Biden’s first full day in office, his new administration issued an Executive Order on Protecting Worker Health and Safety. This Executive Order can be found at the following hyperlink: Executive Order on Protecting Worker Health and Safety | The White House.
One of the specific provisions of the Executive Order required the federal Secretary of Labor, acting through the Assistant Secretary of Labor for Occupational Safety and Health, to issue within two (2) weeks revised guidance to employers on workplace safety during the COVID-19 pandemic. The Executive Order also details, among other provisions, the following requirements: (a) consideration of whether any emergency temporary standards on COVID-19 (including with respect to masks in the workplace) are necessary and issue such standards by March 15, 2021; and (b) review of the enforcement efforts of the Occupational Safety and Health Administration (“OSHA”) to identify changes that could be implemented to protect workers and ensure equity in enforcement.
With respect to the revised guidance on workplace safety, OSHA has already responded to the Executive Order by posting new guidance on January 29, 2021 – “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” This guidance can be found at the following hyperlink: Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace | Occupational Safety and Health Administration (osha.gov).
While this guidance document is advisory in nature rather than mandatory, it does provide a glimpse into future OSHA emergency temporary standards that may be issued by March 15, 2021 and that would likely be mandatory. OSHA intends to update this guidance periodically to reflect developments in science, best practices, and standards. Many of the recommendations in this document are not new, but here are a few highlights:
· Employers should implement workplace COVID-19 Prevention Programs, including conducting a hazard assessment
· Employers should assign a workplace coordinator responsible for COVID-19 issues on the employer’s behalf
· Employers should provide guidance on screening and testing
· Employers need to record and report COVID-19 infections and deaths utilizing Form 300 logs if certain specific requirements are met – including that the COVID-19 case is work-related, as defined by the law and regulations
· Employers should provide information and training on the benefits and safety of vaccinations – including making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees
· Employers should not distinguish between workers who are vaccinated and those who are not
· Employers should provide all workers with face coverings (such as cloth face coverings, surgical masks), unless their work task requires a respirator. Employers should provide face coverings to workers at no cost.
This new focus on OSHA guidance and compliance is likely to result in an increase in investigatory and enforcement activity by the agency and employers may in the near future face enhanced monetary fines and penalties for failing to comply with all updated requirements.
Our Firm has extensive experience counseling employers and businesses on issues resulting from the COVID-19 pandemic. If you have any questions related to this Legal Briefing or questions related to COVID-19 reopening rules and procedures, please contact any member of our Firm at 876-946-1361. Please note that any embedded links to other documents may expire in the future.
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