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. LBD06114-06-1A. 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 beA. 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 relevantA. 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 toA. 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.