Bill Text: NY A02681 | 2021-2022 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Prevents occupational exposure to an airborne infectious disease by implementing a model infectious disease exposure prevention standard and requiring employers to implement such model or a similar plan; provides that where an action brought by an employee under the provisions of this section, or a defense, counterclaim, or crossclaim brought by an employer in response thereto, is found upon judgment to be completely without merit in law and undertaken primarily to harass or maliciously injure another, the court may in its discretion impose sanctions against the attorney or party who brought such action, defense, counterclaim or crossclaim; makes related provisions.

Spectrum: Partisan Bill (Democrat 62-2)

Status: (Passed) 2021-05-05 - approval memo.7 [A02681 Detail]

Download: New_York-2021-A02681-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          2681

                               2021-2022 Regular Sessions

                   IN ASSEMBLY

                                    January 19, 2021
                                       ___________

        Introduced  by M. of A. REYES, LUPARDO, DE LA ROSA, L. ROSENTHAL, ROZIC,
          GOTTFRIED, BURDICK, SEAWRIGHT, BARRON,  J. RIVERA,  MONTESANO,  ENGLE-
          BRIGHT,  JACOBSON,  TAYLOR,  ZINERMAN,  PERRY, MEEKS, CLARK, LUNSFORD,
          GONZALEZ-ROJAS -- read once and referred to the Committee on Labor

        AN ACT to amend the labor law, in relation  to  preventing  occupational
          exposure to an airborne infectious disease

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. The labor law is amended by adding a new section  218-b  to
     2  read as follows:
     3    § 218-b. Prevention of occupational exposure to an airborne infectious
     4  disease.  1.    For  purposes of this section, the following terms shall
     5  have the following meanings:
     6    (a) "Employee" shall mean any person providing labor or  services  for
     7  remuneration  for a private entity or business within the state, without
     8  regard to an individual's immigration status, and shall include, but not
     9  be limited to,  part-time  workers,  independent  contractors,  domestic
    10  workers,  home care and personal care workers, day laborers, farmworkers
    11  and other temporary and seasonal workers. The term  shall  also  include
    12  individuals working for staffing agencies, contractors or subcontractors
    13  on  behalf  of  the employer at any individual work site, as well as any
    14  individual delivering goods or transporting people at, to  or  from  the
    15  work  site  on behalf of the employer, regardless of whether delivery or
    16  transport is conducted by an individual or entity that  would  otherwise
    17  be  deemed  an  employer  under this chapter. The term shall not include
    18  employees of the state, any political subdivision of the state, a public
    19  authority, or any other governmental agency or instrumentality.
    20    (b) "Work site" shall mean any physical space,  including  a  vehicle,
    21  that  has  been  designated as the location where work is performed. The
    22  term  shall  include  employer-provided  housing  and  employer-provided
    23  transportation at, to or from the work site.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06114-01-1

        A. 2681                             2

     1    (c)  "Supervisor"  or "supervisory employee" shall mean any person who
     2  has the authority to direct and control the work  performance  of  other
     3  employees, or who has the managerial authority to take corrective action
     4  regarding  the  violation  of  the  law, rules or regulations. This term
     5  shall not include any member of a collective bargaining unit.
     6    (d)  "Employer"  shall mean any person, entity, business, corporation,
     7  partnership,  limited  liability  company,  or  association   employing,
     8  hiring,  or  paying for the labor of any individual, whether directly or
     9  indirectly, in any occupation, industry, trade,  business,  or  service.
    10  The  term  shall not include the state, any political subdivision of the
    11  state, a public authority, or any other governmental agency  or  instru-
    12  mentality.
    13    2.  The  commissioner,  in consultation with the department of health,
    14  shall create and publish, in both English and Spanish, a model  airborne
    15  infectious  disease  exposure  prevention  standard  for all work sites,
    16  differentiated  by  industry,  to  establish  minimum  requirements  for
    17  preventing  exposure to airborne infectious diseases in the workplace in
    18  order to protect the  public.  The  model  infectious  disease  exposure
    19  prevention  standard  shall take into account the types of risks present
    20  at the work site, including the presence of third parties.  The  commis-
    21  sioner  shall  determine,  in  his or her discretion, which languages to
    22  publish the standard in addition to English and  Spanish  based  on  the
    23  number  of individuals in the state population that speak each language,
    24  the prevalence of certain languages being spoken  in  particular  indus-
    25  tries,  and  any other factor that the commissioner shall deem relevant.
    26  Such standard  shall  include,  but  not  be  limited  to,  establishing
    27  requirements on procedures and methods for:
    28    (a) Employee health screenings;
    29    (b) Face coverings;
    30    (c)  Required personal protective equipment ("PPE") applicable to each
    31  industry for eyes, face, head,  and  extremities,  protective  clothing,
    32  respiratory devices, and protective shields and barriers, which shall be
    33  provided,  used,  and maintained in a sanitary and reliable condition at
    34  the expense of the employer. The standard shall provide for  a  list  of
    35  PPE  that  satisfies  the  requirements, based on hazard assessments for
    36  each industry;
    37    (d) Accessible workplace hand hygiene stations and maintaining healthy
    38  hand hygiene, which shall, at minimum, mandate that  employers  have  at
    39  least  a  ninety day supply of hand hygiene materials and that employers
    40  provide adequate break times for workers to use  handwashing  facilities
    41  as needed;
    42    (e)   Regular  cleaning  and  disinfecting  of  shared  equipment  and
    43  frequently touched surfaces such as  workstations,  touchscreens,  tele-
    44  phones, handrails, and doorknobs, and all surfaces and washable items in
    45  other high-risk areas such as restrooms, dining areas/breakrooms, locker
    46  rooms, vehicles and sleeping quarters.  Cleaning and disinfecting proto-
    47  cols  shall  mandate  that  the  employer  is  responsible  for ensuring
    48  adequate amounts of cleaning and disinfecting supplies, and  select  the
    49  least toxic products approved by the EPA under EPA List N;
    50    (f) Effective social distancing for employees and consumers or custom-
    51  ers including sign postage or markers; increasing physical space between
    52  workers  at  the  worksite; limiting capacity of customers or consumers;
    53  delivering services remotely or through curbside pick-up;  reconfiguring
    54  spaces  where  workers  congregate; flexible meeting and travel options;
    55  flexible worksites; or implementing flexible work hours  such  as  stag-
    56  gered shifts;

        A. 2681                             3

     1    (g)  Compliance with mandatory or precautionary orders of isolation or
     2  quarantine that have been issued to employees, including the identifica-
     3  tion and  provision  of  separate  and  appropriate  accommodations  for
     4  employees who reside in employer-provided housing in a manner consistent
     5  with  mandatory or precautionary orders of isolation and quarantine that
     6  have been issued to employers and employees;
     7    (h) Compliance with applicable engineering controls such as proper air
     8  flow, exhaust ventilation, or other special design requirements;
     9    (i) Designation of  one  or  more  supervisory  employees  to  enforce
    10  compliance with the airborne infectious disease exposure prevention plan
    11  and  any other federal, state, or local guidance related to avoidance of
    12  spreading an airborne infectious disease as applicable to employees  and
    13  third  parties such as customers, contractors, and members of the public
    14  within the workplace. Non-supervisory  line  employees  shall  not  bear
    15  responsibility for compliance with the requirements of the model policy;
    16    (j)  Compliance  with  any applicable laws, rules, regulations, stand-
    17  ards, or guidance on notification to employees and  relevant  state  and
    18  local  agencies  of potential exposure to airborne infectious disease at
    19  the work site; and
    20    (k) Verbal review of infectious disease  standard,  employer  policies
    21  and employee rights under this section.
    22    3.  The model airborne infectious disease exposure prevention standard
    23  shall also include anti-retaliation requirements pursuant to subdivision
    24  eight of this  section.  The  commissioner,  in  consultation  with  the
    25  department of health, shall update the model airborne infectious disease
    26  exposure prevention standard as necessary provided that the commissioner
    27  shall inform employers of the changes.
    28    4.  (a)  Every employer shall establish an airborne infectious disease
    29  exposure prevention plan either by adopting the model standard  relevant
    30  to  their  industry promulgated pursuant to this section as its airborne
    31  infectious disease exposure prevention plan or by establishing an alter-
    32  native plan that equals or exceeds the minimum standards provided by the
    33  model standard.
    34    (b) In any  circumstance  where  an  alternative  airborne  infectious
    35  disease  exposure prevention plan is adopted, the employer shall develop
    36  such plan pursuant to an agreement with the collective bargaining repre-
    37  sentative, if any, or with meaningful participation of  employees  where
    38  there is no collective bargaining representative, for all aspects of the
    39  plan,  and  such  plan  shall be tailored and specific to hazards in the
    40  specific industry and work sites of the employer.
    41    5. Every employer shall provide the airborne infectious disease  expo-
    42  sure  prevention plan to his or her employees, in writing in English and
    43  in the language identified by each employee as the primary  language  of
    44  such  employees upon reopening after a period of closure due to airborne
    45  infectious disease and upon hiring. Businesses permitted to  operate  as
    46  of  the  effective  date  of  this  act shall provide such a plan to all
    47  employees upon the effective date of this act and upon hiring.  When  an
    48  employee  identifies as his or her primary language a language for which
    49  a model document is not available from the  commissioner,  the  employer
    50  shall  comply  with  this  paragraph  by providing that employee with an
    51  English-language notice.
    52    6. The airborne infectious disease exposure prevention plan  shall  be
    53  posted  in  a  visible  and  prominent  location within the worksite. An
    54  employer that provides an employee handbook to its employees  shall,  in
    55  addition,  include  the  airborne infectious disease exposure prevention
    56  plan in its handbook.

        A. 2681                             4

     1    7. Each employer shall make the airborne infectious  disease  exposure
     2  prevention  plan available, upon request, to all employees and independ-
     3  ent contractors, employee representatives, collective bargaining  repre-
     4  sentatives, and the commissioner and the commissioner of public health.
     5    8.  No employer, or his or her agent, or person acting as or on behalf
     6  of a hiring entity, or the officer or agent  of  any  entity,  business,
     7  corporation,  partnership, or limited liability company, shall discrimi-
     8  nate, threaten, retaliate against, or take adverse  action  against  any
     9  employee for:
    10    (a) Exercising their rights under this section or under the applicable
    11  airborne infectious disease exposure prevention plan.
    12    (b)  Reporting  violations  of this section or the applicable airborne
    13  infectious disease exposure prevention plan  to  any  state,  local,  or
    14  federal government entity, public officer or elected official.
    15    (c)  Reporting  an airborne infectious disease exposure concern to, or
    16  seeking assistance or intervention with respect to  airborne  infectious
    17  disease  exposure  concerns, to their employer, state, local, or federal
    18  government entity, public officer or elected official.
    19    (d) Refusing to work where such employee reasonably believes, in  good
    20  faith,  that  such  work  exposes  him  or  her, or other workers or the
    21  public, to an unreasonable risk of exposure to  an  airborne  infectious
    22  disease due to the existence of working conditions that are inconsistent
    23  with laws, rules, policies, orders of any governmental entity, including
    24  but not limited to, the minimum standards provided by the model airborne
    25  infectious  disease  exposure  prevention  standard,  provided  that the
    26  employee, another employee,  or  employee  representative  notified  the
    27  employer  of the inconsistent working conditions and the employer failed
    28  to cure the conditions or the employer had or should have had reason  to
    29  know about the inconsistent working conditions and maintained the incon-
    30  sistent working conditions.
    31    9.  Nothing  in  this  section shall be deemed to diminish the rights,
    32  privileges, or remedies of any employee under any collective  bargaining
    33  agreement.
    34    10. (a) If after investigation the commissioner finds that an employer
    35  or  person  has violated any provision of this section, the commissioner
    36  may, by an order which shall describe particularly  the  nature  of  the
    37  violation,  assess  the  employer  or person a civil penalty of not less
    38  than fifty dollars per day for failure to adopt an  airborne  infectious
    39  disease  exposure prevention plan, or not less than one thousand dollars
    40  nor more than ten thousand dollars for failure to abide  by  an  adopted
    41  airborne infectious disease exposure prevention plan. Provided, however,
    42  that  if  the  commissioner  finds  that  the  employer has violated the
    43  provisions of this section in the preceding six years,  he  or  she  may
    44  assess  a civil penalty of not less than two hundred dollars per day for
    45  failure to adopt an  airborne  infectious  disease  exposure  prevention
    46  plan,  or  not less than one thousand dollars nor more than twenty thou-
    47  sand dollars for failure to abide  by  an  adopted  airborne  infectious
    48  disease  exposure prevention plan. The commissioner may also order other
    49  appropriate relief including enjoining the  conduct  of  any  person  or
    50  employer in addition to any other remedies permitted by this section.
    51    (b) Any employee may bring a civil action seeking injunctive relief in
    52  a  court  of  competent jurisdiction against an employer alleged to have
    53  violated the airborne infectious disease exposure prevention plan  in  a
    54  manner  that  creates  a  substantial  probability that death or serious
    55  physical harm could result from a condition which exists, or from one or
    56  more practices, means, methods, operations or processes which have  been

        A. 2681                             5

     1  adopted  or  are  in  use,  by the employer at the work site, unless the
     2  employer did not and could not, with the exercise  of  reasonable  dili-
     3  gence,  know  of  the  presence  of  the violation. The court shall have
     4  jurisdiction  to  restrain  such violations and to order all appropriate
     5  relief, including enjoining the conduct of the employer; awarding  costs
     6  and  reasonable attorneys' fees to the employee; and ordering payment of
     7  liquidated damages of no greater than twenty  thousand  dollars,  unless
     8  the  employer  proves a good faith basis to believe that the established
     9  health and safety  measures  were  in  compliance  with  the  applicable
    10  airborne infectious disease standard.
    11    11. The provisions and remedies of paragraph (b) of subdivision one of
    12  section  two  hundred  fifteen  of  this  chapter shall be applicable to
    13  subdivision eight of this section.
    14    12. Where a violation of this section is alleged to have occurred, the
    15  commissioner or attorney general may apply in the name of the people  of
    16  the  state of New York for an order enjoining or restraining the commis-
    17  sion or continuance of the alleged unlawful acts.  The commissioner,  in
    18  consultation with the commissioner of health, shall promulgate rules and
    19  regulations necessary to ensure compliance with this chapter.
    20    13. The commissioner, in consultation with the commissioner of health,
    21  shall adopt and amend rules and regulations to effectuate the provisions
    22  and purposes of this section.
    23    §  2. The labor law is amended by adding a new section 27-d to read as
    24  follows:
    25    § 27-d. Workplace safety committees.  1.  For  the  purposes  of  this
    26  section, the following terms shall have the following meanings:
    27    (a)  "Employer"  shall mean any person, entity, business, corporation,
    28  partnership, limited liability company, or an association  employing  at
    29  least  ten  employees  or having an annual payroll of over eight hundred
    30  thousand dollars and a  workers'  compensation  experience  modification
    31  rating  of  more  than  1.20.  The term shall not include the state, any
    32  political subdivision of the state, a public  authority,  or  any  other
    33  governmental agency or instrumentality.
    34    (b)  "Employee"  shall  include all employees in the state, except for
    35  employees of the state, any political subdivision of the state, a public
    36  authority, or any other governmental agency or instrumentality.
    37    2. Employers shall permit employees  to  establish  and  administer  a
    38  joint labor-management workplace safety committee. Each workplace safety
    39  committee shall be composed of employee and employer designees, provided
    40  at  least  two-thirds are non-supervisory employees. Employee members of
    41  the committee shall be selected  by,  and  from  among,  non-supervisory
    42  employees.  Committees  shall  be  co-chaired by a representative of the
    43  employer and non-supervisory employees.  Where  there  is  a  collective
    44  bargaining  agreement in place, the collective bargaining representative
    45  shall be responsible for the selection of employees to serve as  members
    46  of the committee.  Committees representing geographically distinct work-
    47  sites may also be formed as necessary.
    48    3.  No  employer  shall  interfere with the selection of employees who
    49  shall serve on such committee or  who  serve  as  the  workplace  safety
    50  designee  or  with  such employees' performance of the duties authorized
    51  under this section.
    52    4. Each workplace safety committee and workplace safety designee shall
    53  be authorized to perform the following tasks, including but not  limited
    54  to:
    55    (a)   Raise  health  and  safety  concerns,  hazards,  complaints  and
    56  violations to the employer to which the employer must respond.

        A. 2681                             6

     1    (b) Review any policy put in place in the workplace  required  by  any
     2  provision  of this chapter or any provision of the workers' compensation
     3  law and provide feedback to such policy in a manner consistent with  any
     4  provision of law.
     5    (c)  Review the adoption of any policy in the workplace in response to
     6  any health or safety law, ordinance, rule, regulation, executive  order,
     7  or other related directive.
     8    (d) Participate in any site visit by any governmental entity responsi-
     9  ble  for  enforcing  safety  and health standards in a manner consistent
    10  with any provision of law.
    11    (e) Review any report filed by the employer related to the health  and
    12  safety  of  the  workplace  in a manner consistent with any provision of
    13  law.
    14    (f) Regularly schedule a meeting during work hours  at  least  once  a
    15  quarter.
    16    5.  Employers  shall  permit  safety  committee  designees to attend a
    17  training, without suffering a loss of pay, on  the  function  of  worker
    18  safety  committees, rights established under this section, and an intro-
    19  duction to occupational safety and health.
    20    6. Any employee who participates in the activities or establishment of
    21  a workplace safety committee shall not be subject to retaliation for any
    22  actions taken pursuant to their participation. Violations of this subdi-
    23  vision shall be deemed to be a violation of paragraph (a) of subdivision
    24  one of section two hundred fifteen of this chapter.
    25    7. Nothing in this section shall prevent a collective bargaining agent
    26  from negotiating provisions of  a  collective  bargaining  agreement  in
    27  conflict  with  the  provisions  of this section; provided, however, any
    28  agreement in conflict with this section shall  specifically  acknowledge
    29  the provisions of this section.
    30    8.  The  department  shall  adopt  and  amend rules and regulations to
    31  effectuate the provisions and purposes of this section.
    32    § 3. Severability. If any provision of this act,  or  the  application
    33  thereof  to  any person or circumstances, is held invalid or unconstitu-
    34  tional, that invalidity or unconstitutionality shall  not  affect  other
    35  provisions  or applications of this act that can be given effect without
    36  the invalid or unconstitutional provision or application,  and  to  this
    37  end the provisions of this act are severable.
    38    §  4.  This  act shall take effect on the thirtieth day after it shall
    39  have become a law; provided, however, that section two of this act shall
    40  take effect on the one hundred eightieth day after it shall have  become
    41  a  law.  Effective immediately, the addition, amendment and/or repeal of
    42  any rule or regulation necessary for the implementation of this  act  on
    43  its  effective date are authorized to be made and completed on or before
    44  such effective date.
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