On April 23, 2021, the New York legislature passed the Health and Essential Rights (“HERO” or “Act”), which aimed to protect workers and the public from the risks posed by COVID-19 and other airborne infectious diseases by requiring employers with worksites located in New York State to implement specific workplace health and safety standards. The Act was signed into law by Governor Cuomo on May 5, 2021 and subsequent amendments signed into law on June 14, 2021.

On July 6, 2021, the NYDOL published infectious disease prevention standards and model generic and industry-specific airborne infectious disease prevention plans.  New York employers were required to adopt one of the NYDOL’s model plans, or an Alternative Plan that meets or exceeds the model standards by August 5, 2021 and post and distribute the plan to employees by September 4, 2021. 

On September 6, 2021, New York designated COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health” under the HERO Act. This designation means that employers were required to promptly activate their Exposure Prevention Plan, in addition to other requirements.

The New York Commissioner of Health has extended this designation through January 15, 2022. This means that Prevention Plans must continue to be activated until at least January 15, 2022, at which time the Commissioner will review this designation.  

Proposed Regulation

On December 22, 2021, the New York Department of Labor released a new proposed regulation setting forth the workplace safety committee requirements under New York Labor Law Section 27-D, otherwise known as Section 2 of the New York HERO Act. Section 2 permits employees to form workplace health and safety committees that are empowered to review and provide feedback on safety and health issues.

The proposed regulation clarifies that Section 2’s requirements only apply where an employer has at least 10 employees working in New York State. A single workplace safety committee may represent a single worksite (defined as a single, physical location where services, operations, or other activities are performed) or multiple geographically distinct worksites. In other words, employers do not need a separate workplace committee at each worksite.

The proposed regulation provides that a workplace safety committee does not need to be created unless and until two non-supervisory employees at a worksite submit a written request to the company seeking to form a committee. Once an employer receives any request regarding forming or joining a workplace safety committee, they must respond with “reasonable promptness.”

After an employer forms such a committee, it may deny subsequent requests to form a workplace safety committee. Instead, it can refer those requests to the existing committee for consideration—but the committee itself need not accept additional members. The employer must provide employees notice (written, posted, or electronic notice reasonably calculated to provide actual notice) of the committee’s formation within five days of the committee’s recognition by the employer.

The proposed regulation is subject to a notice and comment period, with a public hearing scheduled for February 9, 2022.