On December 22, 2021, the New York State Department of Labor (NY DOL) released the highly anticipated proposed rule (Proposed regulation) concerning the occupational safety committees required by the New York HERO Act (HERO Law). While there is no effective date for the proposed rule (which is first subject to a public comment period and a hearing on February 9, 2022), employers should familiarize themselves with proposed rule and consider taking action to comply with the proposed rule in a timely manner, if applicable. adopted as currently drafted.
The HEROES act
In May 2021, New York responded to the occupational health and safety concerns posed by the COVID-19 pandemic by enacting the HERO Act. Since then, the state has amended the HERO Act to give NY DOL extra time to create model safety standards for infectious disease exposure plans (“safety plans”) mandated by the HERO Act and to give employers extra time to comply .
The HERO Act has two key requirements for employers. Section 1 (NY Labor Law Â§ 218-B) requires employers to create a safety plan, which requirement was activated on September 6, 2021, when COVID-19 was identified as a highly contagious communicable disease that poses a serious risk of causing harm to public health (and this designation has summer recently extended until January 15, 2022).
The NY DOL had previously promised guidance on section 2 (NY Labor Law Â§ 27-D), which requires state employers with ten or more employees to allow employees to form a “workplace safety committee” to “review workplace policies relating to occupational safety and health” , by its effective date of November 1, 2021. published until December 22, 2021, in the form of the proposed rule, which explains the NY DOL’s position on how these committees should be trained and operate. The draft rule does not indicate an effective date, but in general the rules do not come into force until the rule-making process, including the public hearing, has been completed.
Occupational safety committees
The proposed rule confirms a statement by NY DOL made in its previous section 1 advice that section 2 only applies to private employers with ten or more employees, including full-time, part-time, temporary, co-employed and seasonal employees in New York State.
Form a workplace safety committee
To form a workplace safety committee, non-supervisory employees must submit a written request for recognition. The proposed rule appears to say that an eligible written request could take two forms: (1) two separate written requests by non-supervisory employees on the job site, or (2) one written request signed by at least two non-supervisory employees on the job site. . Non-supervisory employees are defined as those who do not have the authority to direct and / or control the job performance of others. The work site is defined as a “single physical location where services, operations or other activities are performed”, but can also include work sites geographically close to each other, used for the same purpose and sharing the same personnel or same equipment. For example, an employer who occupies several floors of the same building may, depending on the facts, be considered as a single site.
The proposed rule would require an employer to respond within a “reasonable time” (undefined) to a request for recognition. If a committee is recognized, employers would be required to give notice to all the employees on the worksite for recognition by the work safety committee within five days of this recognition. Notice may be provided in writing, posted, or by electronic means that are reasonably calculated to provide actual notice.
Once a committee has been recognized, employers would be allowed to refuse further requests for committee recognition. An employer may also deny a request for committee recognition if they already have a workplace safety committee that meets the requirements of the HERO Act, such as a workplace committee existing under a collective agreement. However, these additional requests should be referred to the recognized committee, which can then respond by advising of its existence.
Composition of the workplace safety committee
Section 2 of the HERO Act requires that workplace safety committees be made up of at least two-thirds of non-supervisory employees, who must be selected by and from among non-supervisory employees of the workplace. The other members may be representatives of the employer, provided that the ratio of non-supervisory employees to members appointed by the employer is not less than 2 to 1. Safety committees at work must be composed, at least, the smallest of 12 members, or one third of the total number of employees on the site. However, occupational safety committees on sites with fewer than 10 employees must be made up of at least 3 members. Of these smaller committees, at least two members must be unsupervised employees, and no more than one member is an employer representative.
A non-supervisory employee and a representative of the employer must co-chair each workplace safety committee. It is important to note that employers cannot interfere with the selection of non-supervisory employees to the committee. For work sites where employees are not represented by a union, members of non-supervisory employees can be selected by self-selection, nomination by colleagues, elections or any other process or form.
In unionized workplaces, the proposed rule states that the collective bargaining representative will select employee representatives, who may be employees covered by the collective agreement or any other non-supervisory employee. Neither the proposed rule nor the HERO Act itself explains how this will work in workplaces where there is more than one union representing multiple bargaining units. Likewise, the proposed rule does not explain what should happen in workplaces where some non-supervisory employees are represented by a union and others are not.
An unsupervised employee cannot be a member of two different occupational safety committees for the same employer.
Rules of the workplace safety committee
Workplace safety committees must act either in accordance with rules or procedures adopted by the committee or by majority vote. If workplace safety committees choose to establish rules or regulations, they must adhere to the scope of work, new member selection procedures, member terms of reference, and training of new members, as planned. in article 2 of the HERO law.
The proposed rule provides that occupational safety committees can meet at least quarterly during the working day. Meetings should not âunreasonably conflictâ with the employer’s business activities and are determined by rules adopted by the Workplace Safety Committee, if applicable, or by agreement of the Co-Chairs. While time spent in such meetings will be counted as worked hours for up to two hours per meeting, any additional meeting time must be outside of working hours and will not constitute time worked without approval or approval. employer’s agreement.
In addition, workplace safety committees can provide up to four hours of paid training for committee members. There is no indication of the content of the training, or whether the NY DOL will publish sample training material.
Under the proposed rule, employers are responsible for:
- Respond in writing, within a reasonable time, to complaints raised, or requests for policies or reports, by the Workplace Safety Committee or any of its members;
- Notify the occupational safety committee and its members before any visit to the site by a government body applying safety and health standards;
- Appoint an employer representative to the committee to act as co-chair;
- Allow the workplace safety committee to meet quarterly for a maximum of two hours and for official training up to four hours;
- Refrain from interfering with the workplace safety committee in the exercise of its functions;
- Refrain from disclosing information or documentation to the Occupational Safety Committee or its members where such disclosure is prohibited by law, contains personally identifying information of an employee, or is outside the scope of the duties of the committee. This could include immunization status or information on requests for reasonable accommodations for exceptions to the employer’s immunization policies.
While the proposed rule is subject to rule-making procedures and a hearing on the proposed rule is scheduled for February 9, 2022, employers should consider taking steps to prepare for timely compliance with the rule. proposed rule if adopted in its current form. We will continue to monitor any guidance issued by the NY DOL as a result of the proposed rule.