On December 22, 2021, the New York State Department of Labor (NY DOL) issued the long-awaited proposed rule (Proposed Rule) regarding the workplace safety committees that are required by the New York HERO Act (HERO Act). While there is no current effective date for the Proposed Rule (which is first subject to a public comment period and a February 9, 2022 hearing), employers should become familiar with, and consider taking actions to timely comply with the Proposed Rule should it be adopted as currently drafted.

The HERO Act

In May of 2021, New York responded to workplace safety and health issues presented by the COVID-19 pandemic by enacting the HERO Act.  Since that time, the State has amended the HERO Act to allow the NY DOL additional time to create model safety standards for infectious disease exposure plans (“safety plans”) mandated by the HERO Act and to allow employers additional time for compliance.

The HERO Act has two key requirements for employers. Section 1 (NY Labor Law § 218-B) requires that employers create a safety plan, which requirement was activated on September 6, 2021, when COVID-19 was designated as a highly contagious communicable disease that presents a serious risk of harm to public health (and such designation was recently extended until January 15, 2022).

The NY DOL previously promised guidance on Section 2 (NY Labor Law § 27-D), which requires that employers in the State with ten or more employees allow employees to form a “workplace safety committee” to “review workplace policies relating to occupational safety and health,” by its effective date, November 1, 2021. Guidance was not released until December 22, 2021, in the form of the Proposed Rule, which explains the NY DOL’s position as to how such committees are to be formed and function.  The Proposed Rule does not indicate an effective date, but generally, rules do not become effective until after the rulemaking process, including the public hearing, is completed.

Workplace Safety Committees

The Proposed Rule confirms a statement the NY DOL made in its previous Section 1 guidance that Section 2 only applies to private employers with at least ten employees, including full-time, part-time, temporary, jointly-employed, and seasonal employees, in the State of New York.

Forming a Workplace Safety Committee

To establish a workplace safety committee, non-supervisory employees must submit a written request for recognition. The Proposed Rule appears to say that qualifying written request could take two forms: (1) two separate written requests by non-supervisory employees at the worksite, or (2) one written request signed by two or more non-supervisory employees at the worksite. Non-supervisory employees are defined as those without the authority to direct and/or control the work performance of others. Worksite is defined as a “single, physical location where services, operations or other activities are performed,” but can also include worksites that are geographically in proximity to one another, are used for the same purpose, and share the same staff or equipment. For example, an employer that occupies multiple floors of a single building may, depending on the facts, be considered a single worksite.

The Proposed Rule would obligate an employer to respond with “reasonable promptness” (not defined) to a request for recognition. If a committee is recognized, employers would be obligated to provide notice to all employees at the worksite of the workplace safety committee’s recognition within five days of such recognition. The notice may be provided via written, posted, or by electronic means that are reasonably calculated to provide actual notice.

Once a committee has been recognized, employers would be allowed to deny additional requests for committee recognition. An employer may also deny a request for committee recognition if it already has a workplace safety committee that comports with the requirements of the HERO Act, such as an existing workplace committee under a collective bargaining agreement. However, those additional requests should be referred to the recognized committee, which may then respond advising of its existence.

Composition of the Workplace Safety Committee

Section 2 of the HERO Act requires that workplace safety committees be composed of at least two-thirds non-supervisory employees, who are to be selected by and from among the workplace’s non-supervisory employees. The remaining members may be employer representatives, so long as the ratio of non-supervisory employees to employer-designated members is not less than 2 to 1. Workplace safety committees must consist of, at minimum, the smaller of 12 members, or one-third of the total number of employees at the worksite. However, workplace safety committees at worksites with fewer than 10 employees must have a minimum of 3 members. Of those smaller committees, at least two members are to be non-supervisory employees, with no more than one member an employer representative.

A non-supervisory employee and an employer representative must co-chair each workplace safety committee. Importantly, employers may not interfere with the selection of non-supervisory employees to the committee. For worksites where employees are not represented by a union, the non-supervisory employee members may be selected via self-selection, nomination by co-workers, elections, or any other process or form.

In unionized workplaces, the Proposed Rule indicates that the collective bargaining representative will select the employee representatives, who may be employees covered by the collective bargaining agreement or any other any non-supervisory employees. Neither the Proposed Rule nor the HERO Act itself explains how this will work in those workplaces where there is more than one union representing multiple bargaining units. Similarly, the Proposed Rule does not explain what is to happen in workplaces where some non-supervisory employees are represented by a union and others are not.

A non-supervisory employee may not be a member of two different workplace safety committees for the same employer.

Rules of the Workplace Safety Committee

Workplace safety committees must act either in accordance with the rules or procedures adopted by the committee, or by majority vote.  If the workplace safety committees elect to establish rules or bylaws, they must conform to the scope of the tasks, procedures for selection of new members, terms of members, and training of new members as provided for in Section 2 of the HERO Act.

The Proposed Rule provides that workplace safety committees may conduct meetings at least once per quarter during the workday. Meetings must not “unreasonably conflict” with the employer’s business operations, and shall be scheduled by the rules adopted by the workplace safety committee, if any, or by agreement of the co-chairs. While time spent at such meetings will be considered as hours worked for up to two hours per meeting, any additional meeting time must be outside of work hours, and will not constitute time worked without employer approval or agreement.

Furthermore, workplace safety committees may provide up to four hours of paid committee member training.  There is no guidance on the content of training, or whether the NY DOL will be publishing sample training materials.

Employer Obligations

Under the Proposed Rule, employers are tasked with:

• Responding 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;

• Providing notice to the workplace safety committee and its members ahead of any visit at the worksite by a governmental agency enforcing safety and health standards;

• Appointing an employer representative to the committee to act as a co-chair;

• Permitting the workplace safety committee to meet quarterly for up to two hours and for official trainings for up to four hours;

• Refraining from interfering with the workplace safety committee in the performance of its duties;

• Refraining from disclosing information or documentation to the workplace safety committee or its members where such disclosure is prohibited by law, contains personally identifying information of an employee, or is outside of the scope of the committee’s duties. This could include vaccination status or information about requests for reasonable accommodations for exceptions from employer vaccination policies.

While the Proposed Rule is set to go through the rulemaking procedures and a hearing on the Proposed Rule is scheduled for February 9, 2022, employers should consider taking actions to prepare to timely comply with the Proposed Rule should it be adopted in its current form. We will continue to monitor any guidance issued by the NY DOL following the Proposed Rule.