LBD06114-12-1
S. 6768 2
CONTRACTORS of the state, any political subdivision of the state, a
public authority, or any other governmental agency or instrumentality.
(b) "Work site" shall mean any physical space, including a vehicle,
that has been designated as the location where work is performed OVER
WHICH AN EMPLOYER HAS THE ABILITY TO EXERCISE CONTROL. The term shall
include employer-provided housing and employer-provided transportation
at, to or from the work site but shall not include the residence of the
employer or employee unless such residence has been provided by the
employer and is used as the primary place of work or such residence is
provided by an employer covered under the provisions of article nine-
teen-A of this chapter. THE TERM SHALL NOT INCLUDE A TELECOMMUTING OR
TELEWORK SITE UNLESS THE EMPLOYER HAS THE ABILITY TO EXERCISE CONTROL OF
SUCH SITE.
(c) "Supervisor" or "supervisory employee" shall mean any person who
has the authority to direct and control the work performance of other
employees, or who has the managerial authority to take corrective action
regarding the violation of the law, rules or regulations. This term
shall not include any employee who is a member of a collective bargain-
ing unit that primarily represents employees not otherwise deemed to be
a supervisor or supervisory employee as defined by this subdivision.
(d) "Employer" shall mean any person, entity, business, corporation,
partnership, limited liability company, or association employing,
hiring, or paying for the labor of any individual in any occupation,
industry, trade, business, or service. The term shall not include the
state, any political subdivision of the state, a public authority, or
any other governmental agency or instrumentality.
(e) "Airborne infectious disease" shall mean any infectious viral,
bacterial or fungal disease that is transmissible through the air in the
form of aerosol particles or droplets and is designated BY THE COMMIS-
SIONER OF HEALTH a highly contagious communicable disease [by the
commissioner of health that presents a serious risk of harm to the
public health] THAT PRESENTS A SERIOUS RISK OF HARM TO THE PUBLIC
HEALTH.
2. The commissioner, in consultation with the department of health,
shall create and publish, in both English and Spanish, a model airborne
infectious disease exposure prevention standard for [all work sites,
differentiated by industry, to] INDUSTRIES REPRESENTING A SIGNIFICANT
PORTION OF THE WORKFORCE, OR THOSE WITH UNIQUE CHARACTERISTICS REQUIRING
DISTINCT STANDARDS, AS DETERMINED BY THE COMMISSIONER, IN CONSULTATION
WITH THE COMMISSIONER OF HEALTH. THE COMMISSIONER SHALL FURTHER CREATE
AND PUBLISH, IN ENGLISH AND IN SPANISH, A GENERAL MODEL AIRBORNE INFEC-
TIOUS DISEASE EXPOSURE PREVENTION STANDARD APPLICABLE TO ALL WORKSITES
NOT INCLUDED IN THE SPECIFIC INDUSTRY STANDARDS. SUCH MODEL STANDARDS
SHALL establish minimum requirements for preventing exposure to airborne
infectious diseases in the workplace in order to protect the public and
the workforce. The model infectious disease exposure prevention [stand-
ard] STANDARDS shall take into account the types of risks present at
[the] ANY work site CUSTOMARILY ASSOCIATED WITH EACH COVERED INDUSTRY,
including the presence of third parties. The model [standard] STANDARDS
shall explicitly specify and distinguish the extent to which the
provisions are applicable for different levels of airborne infectious
disease exposure, and shall take into consideration circumstances where
a state of emergency has or has not been declared due to an airborne
infectious disease, and distinctions in policies based on circumstances
where a state of emergency has been declared due to an airborne infec-
tious disease shall take into consideration all applicable federal stan-
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dards to the extent practicable. The commissioner shall determine, in
his or her discretion, which languages to publish the [standard] STAND-
ARDS in addition to English and Spanish based on the number of individ-
uals in the state population that speak each language, the prevalence of
certain languages being spoken in particular industries, and any other
factor that the commissioner shall deem relevant. Such [standard] STAND-
ARDS shall include, but not be limited to, establishing requirements on
procedures and methods for:
(a) Employee health screenings;
(b) Face coverings;
(c) Required personal protective equipment ("PPE") applicable to each
industry for eyes, face, head, and extremities, protective clothing,
respiratory devices, and protective shields and barriers, which shall be
provided, used, and maintained in a sanitary and reliable condition at
the expense of the employer. The [standard] STANDARDS shall provide for
a list of PPE that satisfies the requirements, based on hazard assess-
ments for each industry;
(d) Accessible workplace hand hygiene stations and maintaining healthy
hand hygiene and that employers provide adequate break times for [work-
ers] EMPLOYEES to use handwashing facilities as needed;
(e) Regular cleaning and disinfecting of shared equipment and
frequently touched surfaces such as workstations, touchscreens, tele-
phones, handrails, and doorknobs, and all surfaces and washable items in
other high-risk areas such as restrooms, dining areas/breakrooms, locker
rooms, vehicles and sleeping quarters;
(f) Effective social distancing for employees and consumers or custom-
ers, as the risk of illness may warrant, including options for social
distancing such as sign postage or markers; increasing physical space
between [workers] EMPLOYEES at the worksite; limiting capacity of
customers or consumers; delivering services remotely or through curbside
pick-up; reconfiguring spaces where [workers] EMPLOYEES congregate;
flexible meeting and travel options; flexible worksites; or implementing
flexible work hours such as staggered shifts;
(g) Compliance with mandatory or precautionary orders of isolation or
quarantine that have been issued to employees, including the identifica-
tion and provision of separate and appropriate accommodations for
employees who reside in employer-provided housing in a manner consistent
with mandatory or precautionary orders of isolation and quarantine that
have been issued to employers and employees;
(h) Compliance with applicable engineering controls such as proper air
flow[,] OR exhaust ventilation[, or other special design requirements];
(i) Designation of one or more supervisory employees to enforce
compliance with the airborne infectious disease exposure prevention plan
and any other federal, state, or local guidance related to avoidance of
spreading an airborne infectious disease as applicable to employees and
third parties such as customers, contractors, and members of the public
within the workplace. [Non-supervisory line employees shall not bear] NO
INDIVIDUAL WHO IS NOT A SUPERVISORY EMPLOYEE SHALL HAVE responsibility
for overseeing compliance with the requirements of the [model policy]
AIRBORNE INFECTIOUS DISEASE EXPOSURE PREVENTION PLAN;
(j) Compliance with any applicable laws, rules, regulations, stand-
ards, or guidance on notification to employees and relevant state and
local agencies of potential exposure to airborne infectious disease at
the work site; and
(k) Verbal review of infectious disease standard, employer policies
and employee rights under this section, except such review need not be
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provided to any individuals working for staffing agencies, contractors
or subcontractors on behalf of the employer at any individual work
site, as well as any individual delivering goods or transporting
people at, to or from the work site on behalf of the employer, where
delivery or transport is conducted by an individual or entity that
would otherwise be deemed an employer under this chapter.
3. The model airborne infectious disease exposure prevention [stand-
ard] STANDARDS shall also include anti-retaliation requirements pursuant
to subdivision eight of this section. The commissioner, in consultation
with the department of health, shall update the model airborne infec-
tious disease exposure prevention [standard] STANDARDS as necessary
provided that the commissioner shall inform employers of the changes.
4. (a) [Every] WITHIN THIRTY DAYS AFTER THE COMMISSIONER PUBLISHES THE
MODEL GENERAL STANDARD AND THE MODEL STANDARD RELEVANT TO THE INDUSTRY,
EACH employer shall establish an airborne infectious disease exposure
prevention plan either by adopting the model standard relevant to their
industry promulgated pursuant to this section as its airborne infectious
disease exposure prevention plan or by establishing an alternative plan
that equals or exceeds the minimum standards provided by the model stan-
dard. NO EMPLOYEE WHO IS NOT A SUPERVISORY EMPLOYEE SHALL HAVE RESPON-
SIBILITY FOR OVERSEEING COMPLIANCE WITH THE REQUIREMENTS OF SUCH AN
AIRBORNE INFECTIOUS DISEASE EXPOSURE PLAN.
(b) In any circumstance where an alternative airborne infectious
disease exposure prevention plan is adopted, the employer shall develop
such plan pursuant to an agreement with the collective bargaining repre-
sentative, if any, or with meaningful participation of employees where
there is no collective bargaining representative, for all aspects of the
plan, and such plan shall be tailored and specific to hazards in the
specific industry and work sites of the employer.
5. Every employer shall provide the airborne infectious disease expo-
sure prevention plan to his or her employees, in writing in English and
in the language identified by each employee as the primary language of
such employees [upon] WITHIN THIRTY DAYS AFTER ADOPTION OF THE PLAN,
WITHIN FIFTEEN DAYS AFTER reopening after a period of closure due to
airborne infectious disease and, TO A NEWLY HIRED EMPLOYEE, upon hiring
THE NEW EMPLOYEE. Businesses permitted to operate as of the effective
date of this section shall provide such a plan to all employees [upon
the effective date of this act and upon hiring] WITHIN SIXTY DAYS AFTER
THE COMMISSIONER PUBLISHES THE MODEL STANDARD RELEVANT TO THE INDUSTRY.
When an employee identifies as his or her primary language a language
for which a model [document] STANDARD is not available from the commis-
sioner, the employer shall comply with this paragraph by providing that
employee with an English-language notice.
6. The airborne infectious disease exposure prevention plan shall be
posted in a visible and prominent location within [the] EACH worksite,
OTHER THAN A VEHICLE. An employer that provides an employee handbook to
its employees shall, in addition, include the airborne infectious
disease exposure prevention plan in its handbook.
7. Each employer shall make the airborne infectious disease exposure
prevention plan available, upon request, to all employees and independ-
ent contractors, employee representatives, collective bargaining repre-
sentatives, and the commissioner and the commissioner of [public]
health.
8. No employer, or his or her agent, or person acting as or on behalf
of a hiring entity, or the officer or agent of any entity, business,
corporation, partnership, or limited liability company, shall discrimi-
S. 6768 5
nate, threaten, retaliate against, or take adverse action against any
employee for:
(a) Exercising their rights under this section or under the applicable
airborne infectious disease exposure prevention plan.
(b) Reporting violations of this section or the applicable airborne
infectious disease exposure prevention plan to any state, local, or
federal government entity, public officer or elected official.
(c) Reporting an airborne infectious disease exposure concern to, or
seeking assistance or intervention with respect to airborne infectious
disease exposure concerns, to their employer, state, local, or federal
government entity, public officer or elected official.
(d) Refusing to work where such employee reasonably believes, in good
faith, that such work exposes him or her, or other workers or the
public, to an unreasonable risk of exposure to an airborne infectious
disease due to the existence of working conditions that are inconsistent
with laws, rules, policies, orders of any governmental entity, including
but not limited to, the minimum standards provided by the model airborne
infectious disease exposure prevention standard, provided that the
employee, another employee, or employee representative notified the
employer of the inconsistent working conditions and the employer failed
to cure the conditions or the employer had or should have had reason to
know about the inconsistent working conditions and maintained the incon-
sistent working conditions.
9. Nothing in this section shall be deemed to diminish the rights,
privileges, or remedies of any employee under any collective bargaining
agreement. The provisions of this section may be waived by a collective
bargaining agreement, provided that for such waiver to be valid, it
shall explicitly reference this section.
10. (a) If after investigation the commissioner finds that such
employer or person has violated any provision of this section, the
commissioner may, by an order which shall describe particularly the
nature of the violation, assess a civil penalty of not less than fifty
dollars per day for failure to adopt an airborne infectious disease
exposure prevention plan, or not less than one thousand dollars nor more
than ten thousand dollars for failure to abide by an adopted airborne
infectious disease exposure prevention plan. Provided, however, that if
the commissioner finds that the employer has violated the provisions of
this section in the preceding six years, he or she may assess a civil
penalty of not less than two hundred dollars per day for failure to
adopt an airborne infectious disease exposure prevention plan, or not
less than one thousand dollars nor more than twenty thousand dollars for
failure to abide by an adopted airborne infectious disease exposure
prevention plan. The commissioner may also order other appropriate
relief including enjoining the conduct of any person or employer in
addition to any other remedies permitted by this section.
(b) Any employee may bring a civil action seeking injunctive relief in
a court of competent jurisdiction against an employer alleged to have
violated the airborne infectious disease exposure prevention plan in a
manner that creates a substantial probability that death or serious
physical harm could result TO THE EMPLOYEE from a condition which
exists, or from one or more practices, means, methods, operations or
processes which have been adopted or are in use, by the employer at the
work site, unless the employer did not and could not, with the exercise
of reasonable diligence, know of the presence of the violation. The
court shall have jurisdiction to restrain such violations and to order
all appropriate relief, including enjoining the conduct of the employer;
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AND awarding costs and reasonable attorneys' fees to the employee[; and
ordering payment of liquidated damages of no greater than twenty thou-
sand dollars, unless the employer proves a good faith basis to believe
that the established health and safety measures were in compliance with
the applicable airborne infectious disease standard]. 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.]
THIS SUBDIVISION IS FOUND, AT ANY TIME DURING THE PROCEEDINGS OR UPON
JUDGMENT, TO BE FRIVOLOUS BY THE COURT, THE COURT MAY AWARD TO THE
EMPLOYER COSTS AND REASONABLE ATTORNEYS' FEES. THE COSTS AND FEES
AWARDED MAY BE ASSESSED EITHER AGAINST THE EMPLOYEE OR AGAINST THE
ATTORNEY FOR THE EMPLOYEE, OR AGAINST BOTH, AS MAY BE DETERMINED BY THE
COURT, BASED UPON THE CIRCUMSTANCES OF THE CASE. BEFORE BRINGING A
CIVIL ACTION PURSUANT TO THIS SUBDIVISION, AN EMPLOYEE MUST GIVE THE
EMPLOYER NOTICE OF THE ALLEGED VIOLATION. AN EMPLOYEE MAY NOT BRING A
CIVIL ACTION UNTIL THIRTY DAYS AFTER GIVING THE EMPLOYER NOTICE OF THE
ALLEGED VIOLATION, EXCEPT WHERE AN EMPLOYEE ALLEGES WITH PARTICULARITY
THAT THE EMPLOYER HAS DEMONSTRATED AN UNWILLINGNESS TO CURE A VIOLATION
IN BAD FAITH, AND MAY NOT BRING A CIVIL ACTION IF THE EMPLOYER CORRECTS
THE ALLEGED VIOLATION. AN EMPLOYEE MUST BRING A CIVIL ACTION PURSUANT TO
THIS SUBDIVISION WITHIN SIX MONTHS FROM THE DATE THE EMPLOYEE HAD KNOW-
LEDGE OF THE VIOLATION ALLEGED IN SUCH CIVIL ACTION.
11. The provisions and remedies of paragraph (b) of subdivision one
and paragraphs (a) and (b) of subdivision two of section two hundred
fifteen of this article shall be applicable to subdivision eight of this
section. 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.] THIS SUBDIVISION IS FOUND, AT ANY TIME DURING THE
PROCEEDINGS OR UPON JUDGMENT, TO BE FRIVOLOUS BY THE COURT, THE COURT
MAY AWARD TO THE EMPLOYER COSTS AND REASONABLE ATTORNEYS' FEES. THE
COSTS AND FEES AWARDED MAY BE ASSESSED EITHER AGAINST THE EMPLOYEE OR
AGAINST THE ATTORNEY FOR THE EMPLOYEE, OR AGAINST BOTH, AS MAY BE DETER-
MINED BY THE COURT, BASED UPON THE CIRCUMSTANCES OF THE CASE.
12. Where a violation of this section is alleged to have occurred, the
commissioner or attorney general may apply in the name of the people of
the state of New York for an order enjoining or restraining the commis-
sion or continuance of the alleged unlawful acts. The commissioner, in
consultation with the commissioner of health, shall promulgate rules and
regulations necessary to ensure compliance with this chapter.
13. The commissioner, in consultation with the commissioner of health,
shall adopt and amend rules and regulations to effectuate the provisions
and purposes of this section.
§ 2. Section 27-d of the labor law, as added by a chapter of the laws
of 2021 amending the labor law relating to preventing occupational
exposure to an airborne infectious disease as proposed in legislative
bills numbers S.1034-B and A. 2681-B, is amended to read as follows:
§ 27-d. Workplace safety committees. 1. For the purposes of this
section, the following terms shall have the following meanings:
S. 6768 7
(a) "Employer" shall mean any person, entity, business, corporation,
partnership, limited liability company, or an association employing at
least ten employees. The term shall not include the state, any political
subdivision of the state, a public authority, or any other governmental
agency or instrumentality.
(b) "Employee" shall include all employees in the state, except for
employees of the state, any political subdivision of the state, a public
authority, or any other governmental agency or instrumentality.
2. Employers shall permit employees to establish and administer a
joint labor-management workplace safety committee, BUT NOT MORE THAN ONE
COMMITTEE PER WORKSITE, PROVIDED HOWEVER THAT AN EMPLOYER THAT ALREADY
HAS A WORKPLACE SAFETY COMMITTEE THAT IS OTHERWISE CONSISTENT WITH THE
REQUIREMENTS OF THIS SECTION, SHALL BE EXEMPTED FROM CREATING AN ADDI-
TIONAL SAFETY COMMITTEE UNDER THIS SECTION. Each workplace safety
committee shall be composed of employee and employer designees, provided
at least two-thirds are non-supervisory employees. Employee members of
the committee shall be selected by, and from among, non-supervisory
employees. Committees shall be co-chaired by a representative of the
employer and non-supervisory employees. Where there is a collective
bargaining agreement in place, the collective bargaining representative
shall be responsible for the selection of employees to serve as members
of the committee. Committees representing geographically distinct work-
sites may also be formed as necessary.
3. No employer shall interfere with the selection of employees who
shall serve on such committee or who serve as the workplace safety
designee or with such employees' performance of the duties authorized
under this section.
4. Each workplace safety committee and workplace safety designee shall
be authorized to perform the following tasks, including but not limited
to:
(a) Raise health and safety concerns, hazards, complaints and
violations to the employer to which the employer must respond.
(b) Review any policy put in place in the workplace required by any
provision of this chapter [or any provision of the workers' compensation
law] RELATING TO OCCUPATIONAL SAFETY AND HEALTH and provide feedback to
such policy in a manner consistent with any provision of law.
(c) Review the adoption of any policy in the workplace in response to
any health or safety law, ordinance, rule, regulation, executive order,
or other related directive.
(d) Participate in any site visit by any governmental entity responsi-
ble for enforcing safety and health standards [in a manner consistent
with any provision of law] UNLESS OTHERWISE PROHIBITED BY LAW.
(e) Review any report filed by the employer related to the health and
safety of the workplace in a manner consistent with any provision of
law.
(f) Regularly schedule a meeting during work hours at least once a
quarter THAT SHALL LAST NO LONGER THAN TWO HOURS.
5. Employers shall permit safety committee designees to attend a
training OF NO LONGER THAN FOUR HOURS, without suffering a loss of pay,
on the function of worker safety committees, rights established under
this section, and an introduction to occupational safety and health.
6. Any employee who participates in the activities or establishment of
a workplace safety committee shall not be subject to retaliation for any
actions taken pursuant to their participation. Violations of this subdi-
vision shall be deemed to be a violation of paragraph (a) of subdivision
one of section two hundred fifteen of this chapter and the civil penal-
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ties and remedies of paragraph (b) of subdivision one and paragraphs (a)
and (b) of subdivision two of section two hundred fifteen of this chap-
ter shall be applicable to this subdivision.
7. Nothing in this section shall be deemed to diminish the rights,
privileges, or remedies of any employee under any collective bargaining
agreement. The provisions of this section may be waived by a collective
bargaining agreement, provided that for such waiver to be valid, it
shall explicitly reference this section.
8. The [department] COMMISSIONER shall adopt and amend rules and regu-
lations to effectuate the provisions and purposes of this section.
§ 3. Section 4 of a chapter of the laws of 2021 amending the labor
law relating to preventing occupational exposure to an airborne infec-
tious disease as proposed in legislative bills numbers S.1034-B and A.
2681-B, is amended to read as follows:
§ 4. This act shall take effect on the [thirtieth] SIXTIETH day after
it shall have become a law; provided, however, that section two of this
act shall take effect on the one hundred eightieth day after it shall
have become a law. Effective immediately, the addition, amendment and/or
repeal of any rule or regulation necessary for the implementation of
this act on its effective date are authorized to be made and completed
on or before such effective date.
§ 4. This act shall take effect immediately; provided that sections
one and two of this act shall take effect on the same date and in the
same manner as a chapter of the laws of 2021 amending the labor law
relating to preventing occupational exposure to an airborne infectious
disease, as proposed in legislative bills numbers S.1034-B and A.
2681-B, takes effect.
