The New York State Department of Labor has issued proposed regulations interpreting and further defining the contours of the HERO Act's joint labor-management workplace safety committees. We summarize the proposed regulations below.
HERO Act Background
As we previously reported here, New York enacted the Health and Essential Rights Act - the "HERO Act" - on May 5, 2021 in an effort to address continued COVID-19 safety concerns in the workplace. But the law is much more than a COVID-19-related law and includes two core components.
First, the law requires employers to adopt and distribute health and safety plans that they must activate when the New York State Commissioner of Health designates any disease as a "highly contagious communicable disease that presents a serious risk of harm to the public health." At present, the Commission has made that designation as to COVID-19 and employers have been required to activate their health and safety plans through at least January 15, 2022 (the designation has been extended month-to-month since September 2021). The NYSDOL issued separate interpretative guidance via a FAQ and model HERO plan templates, which we discussed here.
The second part of HERO Act requires employers with 10 or more employees to permit employees at a worksite to establish a joint labor management workplace safety committee. This part of the law went into effect on November 1, 2021.
The HERO Act also required the NYSDOL to adopt rules and regulations to effectuate its provisions and purposes. The NYSDOL has now taken the first step by proposing regulations which provide new definitions and rules applicable to the workplace safety committees.
Summary of the Workplace Safety Committee Proposed Regulations
The proposed regulations, if adopted, would add a new a new subchapter to Part 850 to Title 12 of the New York Codes, Rules and Regulations ("NYCRR"), which includes four sections: (1) Purpose; (2) Definitions; (3) Workplace Safety Committees; and (4) Employer Obligations.
The first section-"Purpose"-provides that these regulations are established as required by Section 27-d of the New York Labor Law, and cover workplace safety committees.
The second section-"Definitions"-includes several proposed definitions that clarify the contours of workplace safety committees. Highlights from this section include:
- Employee Coverage Threshold - To meet the 10-employee threshold, employers need only count those they employ within New York State and not elsewhere. It also requires employers to count the following employees:
- Not just full-time employees, but also part-time, newly-hired, temporary or seasonal employees;
- Employees jointly employed by more than one employer even if they are not on an employer's payroll.
- Employees who may be on a paid or unpaid leave, including sick leave, leaves of absence, disciplinary suspension, or any other type of temporary absence, provided the employer has a reasonable expectation that the employee will later return to active employment.
- Employees whose primary duties involve travel, who telecommute, are out stationed, or work primarily away from the employer's primary location are assigned to the worksite from which their work is assigned or to which they report.
Employers should note that this 10-employee threshold is relevant to whether an employer must allow the formation of any workforce committees. Worksites with fewer than 10 employees may form a committee so long as the employer has 10 or more employees statewide.
- Non-Supervisory Employees - A discussed further below, the HERO Act mandates that any workplace committee: (i) be comprised of employee and employer designees, provided at least 2/3 of the committee's members are non-supervisory employees, (ii) be co-chaired by both an employer representative and a non-supervisory employee; and (iii) have its employee designated members selected by, and from among, non-supervisory employees. The proposed regulations define a "Non-Supervisory Employee" as an 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 Employees." The definition also excludes "managerial and executive Employees."
- Worksites - The HERO Act permits employees to form a
workplace safety committee at any single worksite, and employers
may have more than one worksite. The proposed regulations parse out
this "worksite" concept.
- A "worksite" means "a single, physical location where services, operations, or other activities are performed," and "[g]eographically distinct worksites" means "two or more worksites operated by the same employer that do not constitute a single worksite."
- The definition of "worksite" also includes non-traditional locations. In explaining this concept, the proposed regulations draw from the WARN Act's definition of a "single site of employment," noting that there may be multiple distinct worksites at the same location or that a distinct worksite may exist at multiple buildings or locations not physically connected but located close enough to each other.
- Temporary worksites are not considered worksites under the HERO Act, and are defined as work locations "at which no [e]mployee works for fewer than twenty working days." (We note that there may be a draft error, which we would expect the NYSDOL to address.)
The third section-"Workplace Safety Committees" provides greater detail concerning the creation, composition and operations of workplace committees. Highlights from this section include:
- Establishing Committees -
- Workplace safety 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. Multiple individual requests should be combined to satisfy the two-employee request requirement.
- Upon the receipt of a request for recognition, the employer must respond with reasonable promptness-a term not defined by the proposed regulations-to determine recognition. The regulations do not define that term in part because "circumstances surrounding recognition by an employer may not align to a simple deadline."
- Employers may deny a request for committee recognition where it has already recognized a properly-established committee, but the employer must also refer the request to any existing committee.
- Within 5 days of recognizing a workplace safety committee, employers must provide notice to all employees at the worksite of recognition.
- Employees may seek to form workplace safety committees at geographically distinct worksites, including by non-supervisory employees "who regularly work in multiple or different geographically distinct worksites."
- Committee Composition -
- The workplace committee cannot be comprised of less than two non-supervisory employees and less than one employer representative, and the ratio of non-supervisory employees to employer representatives cannot be less than 2:1 at any given time.
- Generally, a workplace safety committee can have a maximum of 12 members or one-third of the total number of employees at a worksite, whichever is fewer. However, a workplace safety committee at a worksite with fewer than 10 total employees can only have up to 3 members.
- Workplace safety committees are co-chaired by a non-supervisory employee and employer representative.
- The non-supervisory employee committee members at a worksite are selected by and among the employer's non-supervisory employees in a manner determined by those employees. In other words, the employer has no involvement in the selection of non-supervisory employees and may not otherwise interfere with that selection process. The proposed regulations provide selection examples, including "self-selection, nomination by co-workers, and elections," but employees can select any members in any manner "they see fit." But the regulations do not discuss who determines the total number of committee members and allocation between non-supervisory and other employees on the committee.
- At a worksite with a collective bargaining agreement ("CBA") in place, the bargaining representative selects the employee representatives, who may include any non-supervisory employees or employees covered by the CBA.
- A non-supervisory employee cannot serve on two different committees of the same employer.
- Committee Operation -
- Workplace safety committees may "take actions as a committee" that are consistent with the committee's rules or procedures that the committee adopts. Where the committees has not adopted rules or procedures, the committee may takes actions by a majority vote.
- The committee is permitted to establish rules or bylaws, provided that they are consistent with the HERO Act and its interpreting regulations, and such operating rules or bylaws may address issues such as procedures for member selection, terms, and training.
- Committees, through the co-chairs, must notify the employer of committee membership changes.
- The committee may "provide for an official training opportunity for committee members," for which the committee member will be paid, but it may not exceed four hours in any calendar year.
- Meetings should be scheduled in accordance with committee rules or by agreement of the co-chairs, but cannot unreasonably conflict with the employer's business operations.
- Meetings may be held at least once per quarter, but not for longer than two work hours total for all meetings per quarter. Time spent during work hours attending any such meetings are considered hours worked. Despite these limitations, a committee may conduct additional meetings provided they occur outside of working hours (although an employer may permit the committee to conduct them during working hours).
- Employers may restrict the committee's performance of its duties during work hours, except with respect to conducting quarterly committee meetings. The regulations further confirm that an employee's work on committee matters cannot interfere with the performance of their job duties and responsibilities.
The fourth section-"Employer Obligations"-covers obligations of employers, including that employers must:
- Respond, in writing, to each safety and health concern, hazard, complaint and other violations raised by the workplace safety committee or one of its members within a reasonable time period.
- Respond to requests from the committee or one of its members for policies or reports that relate to the committee's duties within a reasonable time period. The regulations make clear, however, that employers are not required to "disclose information or documentation" where that "disclosure is prohibited by law, contains the personal identifying information of an employee [under NYLL §203-d], or is outside of the scope of the information or documentation set forth in the [HERO Act]."
- Provide notice, where practicable and not prohibited by law, to the workplace safety committee of any visit at the worksite by a governmental agency enforcing health and safety standards.
- Appoint an employer representative to the workplace safety committee to serve as the co-chair, which can be "a non-supervisory employee, officer, the employer, or other representative." It is unclear what the proposed regulations means by "the employer" or "other representative" and how broadly employers may interpret that language.
- Permit members of the workplace safety committee to attend a meeting for up to two hours per quarter and an official training as scheduled by the committee, attendance of which are considered hours worked.
- Refrain from interfering with the performance of the workplace safety committee's duties or its members.
An Opportunity Missed?
The proposed regulations provide much needed clarity in certain areas to employers who have struggled to understand the scope of this new law and their obligations in recognizing these committees and allowing them to conduct business. However, the proposed regulations do not provide the clarity sought on certain salient issues.
For example, the law permits the committee to conduct certain "reviews" including of: (1) policies implemented by employers relating to occupational safety and health under the New York Labor Law; (2) "the adoption of any policy in the workplace in response to any health or safety law, ordinance, rule, regulation, executive order, or other related directive"; and (3) "any report filed by the employer related to the health and safety of the workplace in a manner consistent with any provision of law." In only the first case does the law note that the committee may also "provide feedback" regarding such policy. Is the committee's mandate on these issues limited to only review (and feedback)? Further, how expansively may a committee interpret what comprises a health and safety policy or report?
Further, the NYSDOL also did not clarify the extent to, and manner in, which the committee or its members may participate in any site visit by a governmental entity responsible for enforcing health and safety laws (a component of the HERO Act), nor did it clarify the manner in which the committee or its members may raise health and safety concerns, hazards, compliances and violations (another component of the HERO Act). These site visits and complaints often present issues that require employers to respond carefully and sensitively in order to ensure compliance while minimizing disruption to its operations.
The proposed regulations also state that employers must "respond" within a reasonable period of time to the committee when it raises a health or safety complaint or requests a report or policy that relates to the committee's duties, but it does not define or otherwise explain what constitutes an adequate response under the law, including what, if any, action(s) must be taken, if any (other than those required by others laws or regulations).
Without additional clarity from the NYSDOL on these issues, employers will be left to make a good faith effort to come into compliance with the law. Towards that end, employers in receipt of a committee recognition request should consider proactively working with any committees formed to set expectations regarding the committee's mandate and the employer's obligations to work with and respond to the committee, and otherwise partner with such committees to ensure a healthy and safe workplace.
It is important to remember that these are proposed regulations at this point, meaning they have not yet been adopted and there is still an opportunity to submit comments. In addition, a public hearing on these proposed regulations is scheduled for February 9, 2022, after which the NYSDOL will work to adopt final regulations. Although we expect there to be legal challenges to the law, including on the grounds that it may conflict with the National Labor Relations Act, employers should be prepared to come into compliance once the regulations are finalized. We will continue to monitor these regulations and provide updates as we receive them.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.