New York Department of Labor Offers Some Clarity on Employer Obligations Concerning New York HERO Act Workplace Safety Committees

On December 22, 2021, the New York State Department of Labor (“NYDOL”) issued long-awaited proposed rules regarding the establishment and administration of workplace safety committees under the New York State Health and Essential Rights Act (“HERO Act”).

Sidenote and a helpful timeline:

The HERO Act contains various employer obligations that were enacted to protect private sector employees in response to the COVID-19 pandemic.

May 5, 2021 – HERO Act was initially signed into law.

September 6, 2021 – the New York Commissioner of Health designated COVID-19 as a covered “highly contagious communicable disease” under the HERO Act. This triggered requirements for employers with worksites in New York to take certain actions, including, but not limited to, implementing worksite prevention exposure plans. You can find our previously reported update here.

September 23, 2021 – New York State issued an initial round of guidance regarding the HERO Act. However, the State did not provide much clarity around employer obligations related to workplace safety committees. While we have been waiting for more information, the designation of COVID-19 as a covered “highly contagious communicable disease” has been extended several times, and will be in effect until at least February 15, 2022.

November 1, 2021 – Section 2 of the HERO Act took effect, requiring employers with at least ten employees to permit personnel to “establish and administer a joint labor-management workplace safety committee.”

Ok, so what does the updated guidance mean for you? We have summarized the proposed rules below, including those regarding the establishment, composition, and administration of workplace safety committees.

Employee Threshold

The proposed rules clarify that the above ten employee threshold is based on the number of employees located in New York State. In addition to counting regular full-time employees, employers must also count part-time, newly hired, temporary, and seasonal employees, as well as any employees on leave (paid or unpaid), disciplinary suspension, or other types of temporary leave in which the employer reasonably expects the employee to return to active employment.

Establishing a Committee

While there is no affirmative requirement under the HERO Act for employers to create workplace safety committees, covered employers must allow employees to create a committee upon request. The proposed rules provide that, “committees may be established for each worksite following a written request for recognition by at least two non-supervisory employees who work at the worksite.” A “non-supervisory” employee is defined as “any employee who does not perform supervisory responsibilities, which includes but is not limited to the authority to direct and/or control the work performance of other [e]mployees.”

Boiling it down…

As of now, no action is required unless and until at least two non-supervisory employees submit a written request for a workplace safety committee to be formed.

Don’t leave them hanging

Under the proposed rules, when an employer receives a “request for recognition,” the employer must respond to the request with “reasonable promptness.” Employers must also provide notice to all employees at the worksite of the recognition of a workplace safety committee “[w]ithin five days of recognition.”

Multiple locations? You will need a committee for each

While not explicitly clear, the proposed rules seem to suggest that employers with multiple worksites in New York must permit the establishment of one workplace safety committee per worksite.

Composition of the Workplace Safety Committee

The proposed rules provide that workplace safety committees must be comprised of at least two non-supervisory employees (as defined above) and at least one employer representative. Notably, a workplace safety committee cannot exceed twelve (12) members or one-third (1/3) of the total number of employees at the worksite, whichever is fewer.

Workplace safety committees for worksites that have less than ten employees need only have three members.  Regardless of the number of committee members, there must be at least two non-supervisory employees for every employer representative.

Wait…there’s more…

Employers may not select, or in any way influence the selection of, the non-supervisory workplace safety committee members. You will have to leave it to your employees to select their representatives.

At a worksite where there is a collective bargaining agreement in place, the non-supervisory employee representatives are selected by the collective bargaining representative. For all other worksites, the non-supervisory employee members “shall be selected by and amongst the employer’s non-supervisory employees as determined by the non-supervisory employees of the employer.”

Committee Rules and Meeting Requirements

The proposed rules permit workplace safety committees to establish operating rules and procedures, provided such are consistent with law. Rules and bylaws for workplace safety committees may include procedures for the selection of new members, terms of members, and the training of new members.  If no specific rules or procedures are adopted, the committee may take action by a majority vote.

Scheduling those committee meetings

• Workplace safety committee meetings may be conducted “at least once per quarter for not longer than two work hours in total for all meetings per quarter.”
• The time spent during working hours must be considered as hours worked.
• Workplace safety committees are permitted to meet for more than two hours per quarter, but such meetings must be conducted outside of work hours and will not constitute as hours worked (unless otherwise permitted by the employer).
• Workplace safety committees may also provide official training for committee members, but the training may not exceed four hours in any calendar year. Employers must pay the workplace committee members for this training time each year.

Employer Obligations

The proposed rules provide additional employer obligations, including:

• Responding in writing to each safety and health concern, hazard, complaint, or other violations raised by the workplace safety committee or by one of its members “within a reasonable time period.”
• Appointing an employer representative to the committee to act as a co-chair. This employer representative may be a non-supervisory employee, an officer, or other representative.
• Responding to a request for policies or reports that relate to the duties of the workplace safety committee “within a reasonable time period.”
• Providing notice, where practicable and not prohibited by law, to the workplace safety committee and its members ahead of any visit at the worksite by a governmental agency enforcing safety and health standards.
• Not interfering with the performance of the duties of the workplace safety committee or its members.

And there’s still more…

Importantly, the proposed rules state that employers are not required to disclose information or documentation to the workplace safety committee or to any committee member when such a disclosure “is prohibited by law, contains the personal identifying information of an employee as defined by Section 203-d of the Labor Law, or is outside of the scope of the information or documentation set forth in Section 27-d(4) of the Labor Law.”

Make sure you stay tuned and keep your pencils ready for edits!

On February 9, 2022, a public hearing will be held on the proposed rules. Public comments will be accepted by the NYDOL until five days after the last scheduled public hearing.

All employers with worksites in New York should stay up-to-date with any developments from the New York Department of Health and NYDOL that may trigger further revision of their worksite exposure prevention plans or any other obligations under the HERO Act.