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

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-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         2681--A

                               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, DINOWITZ, MAMDANI, SIMON,  HEVESI,  DICKENS,  JACKSON,
          GALLAGHER,  FERNANDEZ,  COLTON, RAJKUMAR, EPSTEIN, SILLITTI, D. ROSEN-
          THAL, CARROLL, MITAYNES,  DeSTEFANO,  PHEFFER AMATO,  QUART,  BRONSON,
          NOLAN,  FORREST,  LAVINE, RODRIGUEZ, BENEDETTO, ABBATE, THIELE, ANDER-
          SON, O'DONNELL, BARNWELL, BURGOS, CRUZ -- read once  and  referred  to
          the  Committee on Labor -- committee discharged, bill amended, ordered
          reprinted as amended and recommitted to said committee

        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

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06114-06-1

        A. 2681--A                          2

     1  employees of the state, any political subdivision of the state, a public
     2  authority, or any other governmental agency or instrumentality.
     3    (b)  "Work  site"  shall mean any physical space, including a vehicle,
     4  that has been designated as the location where work  is  performed.  The
     5  term  shall  include  employer-provided  housing  and  employer-provided
     6  transportation at, to or from the work site but shall  not  include  the
     7  residence  of  the  employer  or employee unless such residence has been
     8  provided by the employer and is used as the primary  place  of  work  or
     9  such  residence  is provided by an employer covered under the provisions
    10  of article nineteen-A of this chapter.
    11    (c) "Supervisor" or "supervisory employee" shall mean any  person  who
    12  has  the  authority  to direct and control the work performance of other
    13  employees, or who has the managerial authority to take corrective action
    14  regarding the violation of the law,  rules  or  regulations.  This  term
    15  shall  not include any employee who is a member of a collective bargain-
    16  ing unit that primarily represents employees not otherwise deemed to  be
    17  a supervisor or supervisory employee as defined by this subdivision.
    18    (d)  "Employer"  shall mean any person, entity, business, corporation,
    19  partnership,  limited  liability  company,  or  association   employing,
    20  hiring,  or  paying  for  the labor of any individual in any occupation,
    21  industry, trade, business, or service. The term shall  not  include  the
    22  state,  any  political  subdivision of the state, a public authority, or
    23  any other governmental agency or instrumentality.
    24    (e) "Airborne infectious disease" shall  mean  any  infectious  viral,
    25  bacterial or fungal disease that is transmissible through the air in the
    26  form of aerosol particles or droplets and is designated  a highly conta-
    27  gious communicable disease by the commissioner of health that presents a
    28  serious risk of harm to the public health.
    29    2.  The  commissioner,  in consultation with the department of health,
    30  shall create and publish, in both English and Spanish, a model  airborne
    31  infectious  disease  exposure  prevention  standard  for all work sites,
    32  differentiated  by  industry,  to  establish  minimum  requirements  for
    33  preventing  exposure to airborne infectious diseases in the workplace in
    34  order to protect the public and the workforce.    The  model  infectious
    35  disease  exposure  prevention standard shall take into account the types
    36  of risks present at the work  site,  including  the  presence  of  third
    37  parties.    The  model standard shall explicitly specify and distinguish
    38  the extent to which the provisions are applicable for  different  levels
    39  of  airborne  infectious disease exposure, and shall take into consider-
    40  ation circumstances where a state of  emergency  has  or  has  not  been
    41  declared  due  to  an  airborne  infectious disease, and distinctions in
    42  policies based on circumstances where a  state  of  emergency  has  been
    43  declared due to an airborne infectious disease shall take into consider-
    44  ation  all  applicable federal standards to the extent practicable.  The
    45  commissioner shall determine, in his or her discretion, which  languages
    46  to  publish the standard in addition to English and Spanish based on the
    47  number of individuals in the state population that speak each  language,
    48  the  prevalence  of  certain languages being spoken in particular indus-
    49  tries, and any other factor that the commissioner shall  deem  relevant.
    50  Such  standard  shall  include,  but  not  be  limited  to, establishing
    51  requirements on procedures and methods for:
    52    (a) Employee health screenings;
    53    (b) Face coverings;
    54    (c) Required personal protective equipment ("PPE") applicable to  each
    55  industry  for  eyes,  face,  head, and extremities, protective clothing,
    56  respiratory devices, and protective shields and barriers, which shall be

        A. 2681--A                          3

     1  provided, used, and maintained in a sanitary and reliable  condition  at
     2  the  expense  of  the employer. The standard shall provide for a list of
     3  PPE that satisfies the requirements, based  on  hazard  assessments  for
     4  each industry;
     5    (d) Accessible workplace hand hygiene stations and maintaining healthy
     6  hand hygiene and that employers provide adequate break times for workers
     7  to use handwashing facilities as needed;
     8    (e)   Regular  cleaning  and  disinfecting  of  shared  equipment  and
     9  frequently touched surfaces such as  workstations,  touchscreens,  tele-
    10  phones, handrails, and doorknobs, and all surfaces and washable items in
    11  other high-risk areas such as restrooms, dining areas/breakrooms, locker
    12  rooms, vehicles and sleeping quarters;
    13    (f) Effective social distancing for employees and consumers or custom-
    14  ers,  as  the  risk of illness may warrant, including options for social
    15  distancing such as sign postage or markers;  increasing  physical  space
    16  between  workers  at  the  worksite;  limiting  capacity of customers or
    17  consumers; delivering services remotely  or  through  curbside  pick-up;
    18  reconfiguring  spaces  where  workers  congregate;  flexible meeting and
    19  travel options; flexible worksites; or implementing flexible work  hours
    20  such as staggered shifts;
    21    (g)  Compliance with mandatory or precautionary orders of isolation or
    22  quarantine that have been issued to employees, including the identifica-
    23  tion and  provision  of  separate  and  appropriate  accommodations  for
    24  employees who reside in employer-provided housing in a manner consistent
    25  with  mandatory or precautionary orders of isolation and quarantine that
    26  have been issued to employers and employees;
    27    (h) Compliance with applicable engineering controls such as proper air
    28  flow, exhaust ventilation, or other special design requirements;
    29    (i) Designation of  one  or  more  supervisory  employees  to  enforce
    30  compliance with the airborne infectious disease exposure prevention plan
    31  and  any other federal, state, or local guidance related to avoidance of
    32  spreading an airborne infectious disease as applicable to employees  and
    33  third  parties such as customers, contractors, and members of the public
    34  within the workplace. Non-supervisory  line  employees  shall  not  bear
    35  responsibility  for  overseeing  compliance with the requirements of the
    36  model policy;
    37    (j) Compliance with any applicable laws,  rules,  regulations,  stand-
    38  ards,  or  guidance  on notification to employees and relevant state and
    39  local agencies of potential exposure to airborne infectious  disease  at
    40  the work site; and
    41    (k)  Verbal  review  of infectious disease standard, employer policies
    42  and employee rights under this section, except such review need  not  be
    43  provided   to any individuals working for staffing agencies, contractors
    44  or subcontractors   on behalf of the employer  at  any  individual  work
    45  site,  as   well  as  any  individual delivering  goods  or transporting
    46  people at, to or from the work site on behalf  of  the  employer,  where
    47  delivery   or   transport  is  conducted by an individual or entity that
    48  would otherwise  be deemed an employer under this chapter.
    49    3. The model airborne infectious disease exposure prevention  standard
    50  shall also include anti-retaliation requirements pursuant to subdivision
    51  eight  of  this  section.    The  commissioner, in consultation with the
    52  department of health, shall update the model airborne infectious disease
    53  exposure prevention standard as necessary provided that the commissioner
    54  shall inform employers of the changes.
    55    4. (a) Every employer shall establish an airborne  infectious  disease
    56  exposure  prevention plan either by adopting the model standard relevant

        A. 2681--A                          4

     1  to their industry promulgated pursuant to this section as  its  airborne
     2  infectious disease exposure prevention plan or by establishing an alter-
     3  native plan that equals or exceeds the minimum standards provided by the
     4  model standard.
     5    (b)  In  any  circumstance  where  an  alternative airborne infectious
     6  disease exposure prevention plan is adopted, the employer shall  develop
     7  such plan pursuant to an agreement with the collective bargaining repre-
     8  sentative,  if  any, or with meaningful participation of employees where
     9  there is no collective bargaining representative, for all aspects of the
    10  plan, and such plan shall be tailored and specific  to  hazards  in  the
    11  specific industry and work sites of the employer.
    12    5.  Every employer shall provide the airborne infectious disease expo-
    13  sure prevention plan to his or her employees, in writing in English  and
    14  in  the  language identified by each employee as the primary language of
    15  such employees upon reopening after a period of closure due to  airborne
    16  infectious  disease  and upon hiring. Businesses permitted to operate as
    17  of the effective date of this act shall  provide  such  a  plan  to  all
    18  employees  upon  the effective date of this act and upon hiring. When an
    19  employee identifies as his or her primary language a language for  which
    20  a  model  document  is not available from the commissioner, the employer
    21  shall comply with this paragraph by  providing  that  employee  with  an
    22  English-language notice.
    23    6.  The  airborne infectious disease exposure prevention plan shall be
    24  posted in a visible and  prominent  location  within  the  worksite.  An
    25  employer  that  provides an employee handbook to its employees shall, in
    26  addition, include the airborne infectious  disease  exposure  prevention
    27  plan in its handbook.
    28    7.  Each  employer shall make the airborne infectious disease exposure
    29  prevention plan available, upon request, to all employees and  independ-
    30  ent  contractors, employee representatives, collective bargaining repre-
    31  sentatives, and the commissioner and the commissioner of public health.
    32    8. No employer, or his or her agent, or person acting as or on  behalf
    33  of  a  hiring  entity,  or the officer or agent of any entity, business,
    34  corporation, partnership, or limited liability company, shall  discrimi-
    35  nate,  threaten,  retaliate  against, or take adverse action against any
    36  employee for:
    37    (a) Exercising their rights under this section or under the applicable
    38  airborne infectious disease exposure prevention plan.
    39    (b) Reporting violations of this section or  the  applicable  airborne
    40  infectious  disease  exposure  prevention  plan  to any state, local, or
    41  federal government entity, public officer or elected official.
    42    (c) Reporting an airborne infectious disease exposure concern  to,  or
    43  seeking  assistance  or intervention with respect to airborne infectious
    44  disease exposure concerns, to their employer, state, local,  or  federal
    45  government entity, public officer or elected official.
    46    (d)  Refusing to work where such employee reasonably believes, in good
    47  faith, that such work exposes him  or  her,  or  other  workers  or  the
    48  public,  to  an  unreasonable risk of exposure to an airborne infectious
    49  disease due to the existence of working conditions that are inconsistent
    50  with laws, rules, policies, orders of any governmental entity, including
    51  but not limited to, the minimum standards provided by the model airborne
    52  infectious disease  exposure  prevention  standard,  provided  that  the
    53  employee,  another  employee,  or  employee  representative notified the
    54  employer of the inconsistent working conditions and the employer  failed
    55  to  cure the conditions or the employer had or should have had reason to

        A. 2681--A                          5

     1  know about the inconsistent working conditions and maintained the incon-
     2  sistent working conditions.
     3    9.  Nothing  in  this  section shall be deemed to diminish the rights,
     4  privileges, or remedies of any employee under any collective  bargaining
     5  agreement.  The provisions of this section may be waived by a collective
     6  bargaining  agreement,  provided  that  for  such waiver to be valid, it
     7  shall explicitly reference this section.
     8    10. (a) If after investigation the commissioner finds that an employer
     9  or person has violated any provision of this section,  the  commissioner
    10  may,  by  an  order  which shall describe particularly the nature of the
    11  violation, assess the employer or person a civil  penalty  of  not  less
    12  than  fifty  dollars per day for failure to adopt an airborne infectious
    13  disease exposure prevention plan, or not less than one thousand  dollars
    14  nor  more  than  ten thousand dollars for failure to abide by an adopted
    15  airborne infectious disease exposure prevention plan. Provided, however,
    16  that if the commissioner  finds  that  the  employer  has  violated  the
    17  provisions  of  this  section  in the preceding six years, he or she may
    18  assess a civil penalty of not less than two hundred dollars per day  for
    19  failure  to  adopt  an  airborne  infectious disease exposure prevention
    20  plan, or not less than one thousand dollars nor more than  twenty  thou-
    21  sand  dollars  for  failure  to  abide by an adopted airborne infectious
    22  disease exposure prevention plan. The commissioner may also order  other
    23  appropriate  relief  including  enjoining  the  conduct of any person or
    24  employer in addition to any other remedies permitted by this section.
    25    (b) Any employee may bring a civil action seeking injunctive relief in
    26  a court of competent jurisdiction against an employer  alleged  to  have
    27  violated  the  airborne infectious disease exposure prevention plan in a
    28  manner that creates a substantial  probability  that  death  or  serious
    29  physical harm could result from a condition which exists, or from one or
    30  more  practices, means, methods, operations or processes which have been
    31  adopted or are in use, by the employer at  the  work  site,  unless  the
    32  employer  did  not  and could not, with the exercise of reasonable dili-
    33  gence, know of the presence of  the  violation.  The  court  shall  have
    34  jurisdiction  to  restrain  such violations and to order all appropriate
    35  relief, including enjoining the conduct of the employer; awarding  costs
    36  and  reasonable attorneys' fees to the employee; and ordering payment of
    37  liquidated damages of no greater than twenty  thousand  dollars,  unless
    38  the  employer  proves a good faith basis to believe that the established
    39  health and safety  measures  were  in  compliance  with  the  applicable
    40  airborne  infectious  disease  standard.   Where an action brought by an
    41  employee under the provisions of this section, or  a  defense,  counter-
    42  claim,  or  crossclaim  brought  by  an employer in response thereto, is
    43  found upon judgment to be completely without merit in law and undertaken
    44  primarily to harass or maliciously injure another, the court may in  its
    45  discretion  impose  sanctions  against the attorney or party who brought
    46  such action, defense, counterclaim or crossclaim.
    47    11. The provisions and remedies of paragraph (b) of subdivision one of
    48  section two hundred fifteen of  this  chapter  shall  be  applicable  to
    49  subdivision  eight  of  this  section.    Where  an action brought by an
    50  employee under the provisions of this section, or  a  defense,  counter-
    51  claim,  or  crossclaim  brought  by  an employer in response thereto, is
    52  found upon judgment to be completely without merit in law and undertaken
    53  primarily to harass or maliciously injure another, the court may in  its
    54  discretion  impose  sanctions  against the attorney or party who brought
    55  such action, defense, counterclaim or crossclaim.

        A. 2681--A                          6

     1    12. Where a violation of this section is alleged to have occurred, the
     2  commissioner or attorney general may apply in the name of the people  of
     3  the  state of New York for an order enjoining or restraining the commis-
     4  sion or continuance of the alleged unlawful acts.  The commissioner,  in
     5  consultation with the commissioner of health, shall promulgate rules and
     6  regulations necessary to ensure compliance with this chapter.
     7    13. The commissioner, in consultation with the commissioner of health,
     8  shall adopt and amend rules and regulations to effectuate the provisions
     9  and purposes of this section.
    10    §  2. The labor law is amended by adding a new section 27-d to read as
    11  follows:
    12    § 27-d. Workplace safety committees.  1.  For  the  purposes  of  this
    13  section, the following terms shall have the following meanings:
    14    (a)  "Employer"  shall mean any person, entity, business, corporation,
    15  partnership, limited liability company, or an association  employing  at
    16  least ten employees. The term shall not include the state, any political
    17  subdivision  of the state, a public authority, or any other governmental
    18  agency or instrumentality.
    19    (b) "Employee" shall include all employees in the  state,  except  for
    20  employees of the state, any political subdivision of the state, a public
    21  authority, or any other governmental agency or instrumentality.
    22    2.  Employers  shall  permit  employees  to establish and administer a
    23  joint labor-management workplace safety committee. Each workplace safety
    24  committee shall be composed of employee and employer designees, provided
    25  at least two-thirds are non-supervisory employees. Employee  members  of
    26  the  committee  shall  be  selected  by, and from among, non-supervisory
    27  employees. Committees shall be co-chaired by  a  representative  of  the
    28  employer  and  non-supervisory  employees.  Where  there is a collective
    29  bargaining agreement in place, the collective bargaining  representative
    30  shall  be responsible for the selection of employees to serve as members
    31  of the committee.  Committees representing geographically distinct work-
    32  sites may also be formed as necessary.
    33    3. No employer shall interfere with the  selection  of  employees  who
    34  shall  serve  on  such  committee  or  who serve as the workplace safety
    35  designee or with such employees' performance of  the  duties  authorized
    36  under this section.
    37    4. Each workplace safety committee and workplace safety designee shall
    38  be  authorized to perform the following tasks, including but not limited
    39  to:
    40    (a)  Raise  health  and  safety  concerns,  hazards,  complaints   and
    41  violations to the employer to which the employer must respond.
    42    (b)  Review  any  policy put in place in the workplace required by any
    43  provision of this chapter or any provision of the workers'  compensation
    44  law  and provide feedback to such policy in a manner consistent with any
    45  provision of law.
    46    (c) Review the adoption of any policy in the workplace in response  to
    47  any  health or safety law, ordinance, rule, regulation, executive order,
    48  or other related directive.
    49    (d) Participate in any site visit by any governmental entity responsi-
    50  ble for enforcing safety and health standards  in  a  manner  consistent
    51  with any provision of law.
    52    (e)  Review any report filed by the employer related to the health and
    53  safety of the workplace in a manner consistent  with  any  provision  of
    54  law.
    55    (f)  Regularly  schedule  a  meeting during work hours at least once a
    56  quarter.

        A. 2681--A                          7

     1    5. Employers shall permit  safety  committee  designees  to  attend  a
     2  training,  without  suffering  a  loss of pay, on the function of worker
     3  safety committees, rights established under this section, and an  intro-
     4  duction to occupational safety and health.
     5    6. Any employee who participates in the activities or establishment of
     6  a workplace safety committee shall not be subject to retaliation for any
     7  actions taken pursuant to their participation. Violations of this subdi-
     8  vision shall be deemed to be a violation of paragraph (a) of subdivision
     9  one of section two hundred fifteen of this chapter.
    10    7.  Nothing  in  this  section shall be deemed to diminish the rights,
    11  privileges, or remedies of any employee under any collective  bargaining
    12  agreement.  The provisions of this section may be waived by a collective
    13  bargaining agreement, provided that for such  waiver  to  be  valid,  it
    14  shall explicitly reference this section.
    15    8.  The  department  shall  adopt  and  amend rules and regulations to
    16  effectuate the provisions and purposes of this section.
    17    § 3. Severability. If any provision of this act,  or  the  application
    18  thereof  to  any person or circumstances, is held invalid or unconstitu-
    19  tional, that invalidity or unconstitutionality shall  not  affect  other
    20  provisions  or applications of this act that can be given effect without
    21  the invalid or unconstitutional provision or application,  and  to  this
    22  end the provisions of this act are severable.
    23    §  4.  This  act shall take effect on the thirtieth day after it shall
    24  have become a law; provided, however, that section two of this act shall
    25  take effect on the one hundred eightieth day after it shall have  become
    26  a  law.  Effective immediately, the addition, amendment and/or repeal of
    27  any rule or regulation necessary for the implementation of this  act  on
    28  its  effective date are authorized to be made and completed on or before
    29  such effective date.
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