The New York State Department of Labor (NYSDOL) has released proposed regulations related to the New York HERO Act's workplace safety committee requirements. As detailed in our prior advisories, Section 2 of the HERO Act requires employers with at least 10 employees to permit employees to establish and administer a workplace safety committee.

The proposed regulations provide definitional clarifications, as well as rules for the establishment, composition, and operation of committees. The proposed regulations are subject to a notice and comment period, with a public hearing scheduled for February 9, 2022.

Counting Employees

The workplace safety committee requirement applies to employers with 10 or more employees. The proposed regulations provide that employee counts will be based on the total number of employees that an employer employs in New York.

The proposed regulations provide that employees who are on leave, part-time, newly hired, temporary, seasonal, or jointly employed with one or more other employers are included in such counts.

Employers With Multiple Worksites

The HERO Act requires employers to recognize a committee at each worksite if employees request it. Otherwise, the employer need not recognize a committee.

The HERO Act does not clarify what constitutes a worksite (defined by the HERO Act as 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 proposed regulations provide the following examples of a "worksite":

• A single location or building.
• A group of contiguous locations in proximity to one another even though they are not directly connected to one another. For example, groups of structures which form a campus or industrial park or separate facilities across the street from one another owned by the same employer may be considered a single worksite.
• Separate buildings or facilities, which are not physically connected or are not in proximity to one another, if they are in reasonable geographic proximity, are used by the employer for the same purpose, and share the same staff or equipment. For example, where an employer has two separate locations in the same geographic area and the purpose of one location is to support the operations of the other location, and this support requires travel between the two locations, the two locations will be considered a worksite.

Notably, the definition of worksite expressly excludes the following from the definition of a single worksite:

• Contiguous buildings or sites occupied by the same employer that have separate management, produce different products, or provide different services, and have separate workforces do not constitute a single worksite, with the exception of employers that house all operations within the same building (i.e., an employer that operates offices on numerous floors of a single office building).
• Non-contiguous sites in the same geographic area that have separate management, produce different products or provide different services, and have separate workforces.

Significantly, the guidance addresses how worksites are defined for remote employees (for instance employees who live in New Jersey and are working from home due to the pandemic) and employees whose primary duties require travel. For such employees, the worksite is the location to which they are assigned as their employer's home base, from which their work is assigned, or to which they report.

Establishment of Committees

The proposed regulations provide that committees can be established by a written request for recognition from two non-supervisory employees. Employers are then required to respond to such written recognition requests with "reasonable promptness," but the proposed regulations do not specify a time period.

Within five days following the employer recognizing a committee, the employer must provide notice (written, posted, or electronic notice reasonably calculated to provide actual notice) to all employees at the worksite of such recognition. After a committee is formed, the employer must deny subsequent requests to form a committee and refer such requests to the existing committee for consideration.

The proposed regulations define "non-supervisory employee" as any employee who does not perform supervisory responsibilities, including the authority to direct or control the work performance of other employees, and exclude managerial and executive employees.

Composition of Committees

The proposed regulations state that a committee must be comprised of not less than two non-supervisory employees and not less than one employer representative. However, the ratio of non-supervisory employees to employer representatives must be at least two-thirds of all committee members.

A committee shall have a maximum of the lesser of 12 members or one-third of the total number of employees at the worksite; except that committees at worksites with fewer than 10 employees shall have 3 members. Furthermore, committees must be co-chaired by a non-supervisory employee and an employer representative.

Consistent with the HERO Act, the proposed regulations clarify that where collective bargaining agreements are in place, the bargaining agent may select the employee members for the committee. In contrast, at worksites where no collective bargaining agreement is in place, the proposed regulations permit employees to select the members of the committee and prohibits employer involvement in the process.

Rules Governing Employees

The proposed regulations permit committees to establish operating rules and procedures, provided that such rules and procedures are consistent with the law. The proposed regulations also set forth rules for the training of committee members and the scheduling of meetings. Specifically, committees may:

• Conduct training for committee members on the function of the committee and an introduction to workplace health and safety up to a maximum of four hours per calendar year without loss of pay.
• Schedule meetings at least once per quarter up to a maximum of two hours per quarter without loss of pay, so long as meetings do not unreasonably conflict with business operations.
• Schedule additional meetings, but they must be conducted outside of work hours and time spent on those meetings does not need to be paid.

Employer Obligations

The proposed regulations outline the specific obligations that employers have under the HERO Act, including:

• Responding, in writing, to each safety and health concern, hazard, complaint, and other violations raised by the committee or one of its members within a reasonable time.
• Responding to a request from the committee or one of its members for policies or reports that relate to the duties of the committee within a reasonable time.
• Providing notice, where practicable and not in violation of the law, to the committee and its members ahead of any worksite visit by a governmental agency enforcing safety and health standards.
• Appointing an employer representative, who can be a non-supervisory employee, officer, the employer, or other representative, to the committee to act as co-chair.

Employer Action Items

There is no immediate action required from employers as the proposed regulations will not take effect until after the rulemaking process is complete. Additionally, the proposed regulations may face legal challenges on the basis that its requirements are preempted by the National Labor Relations Act, which governs how employee representatives who are arguably engaged in bargaining over working conditions or resolving workplace grievances are selected and function.

However, if the proposed regulations are adopted in their current form, employers will have to prepare for any written requests, from at least two employees, to form a workplace safety committee.

Public comments should be sent to Michael Paglialonga, NYS Department of Labor, Building 12, State Office Campus, Room 509, Albany, N.Y. 12240, (518) 485-2191, email: regulations@labor.ny.gov.

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