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:
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.
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