STATE OF NEW YORK
        ________________________________________________________________________

                                         2681--B

                               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,  PHEFFER AMATO,  QUART,   BRONSON,   NOLAN,
          FORREST,  LAVINE,  RODRIGUEZ,  BENEDETTO,  ABBATE,  THIELE,  ANDERSON,
          O'DONNELL, BARNWELL, BURGOS, CRUZ,  SEPTIMO,  NIOU,  PICHARDO,  DURSO,
          CYMBROWITZ,  WALLACE,  KIM,  OTIS, HUNTER -- read once and referred to
          the Committee on Labor -- committee discharged, bill amended,  ordered
          reprinted as amended and recommitted to said committee -- reported and
          referred  to  the  Committee  on  Codes  -- committee discharged, bill
          amended, ordered reprinted as amended and recommitted to said  commit-
          tee

        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

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06114-10-1

        A. 2681--B                          2

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

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

        A. 2681--B                          4

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

        A. 2681--B                          5

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

        A. 2681--B                          6

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

        A. 2681--B                          7

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