S T A T E O F N E W Y O R K
________________________________________________________________________
1034--B
Cal. No. 119
2021-2022 Regular Sessions
I N S E N A T E
January 6, 2021
___________
Introduced by Sens. GIANARIS, BAILEY, BENJAMIN, BIAGGI, BRISPORT,
BROOKS, BROUK, COONEY, GAUGHRAN, GOUNARDES, HINCHEY, HOYLMAN, JACKSON,
KENNEDY, KRUEGER, LIU, MANNION, MAY, MAYER, PARKER, RAMOS,
REICHLIN-MELNICK, RIVERA, RYAN, SALAZAR, SANDERS, SAVINO, SEPULVEDA,
SKOUFIS, THOMAS -- read twice and ordered printed, and when printed to
be committed to the Committee on Labor -- reported favorably from said
committee, ordered to first and second report, ordered to a third
reading, amended and ordered reprinted, retaining its place in the
order of third reading -- passed by Senate and delivered to the Assem-
bly, recalled, vote reconsidered, restored to third reading, amended
and ordered reprinted, retaining its place in the order of third read-
ing
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:
Section 1. The labor law is amended by adding a new section 218-b to
read as follows:
§ 218-B. PREVENTION OF OCCUPATIONAL EXPOSURE TO AN AIRBORNE INFECTIOUS
DISEASE. 1. FOR PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL
HAVE THE FOLLOWING MEANINGS:
(A) "EMPLOYEE" SHALL MEAN ANY PERSON PROVIDING LABOR OR SERVICES FOR
REMUNERATION FOR A PRIVATE ENTITY OR BUSINESS WITHIN THE STATE, WITHOUT
REGARD TO AN INDIVIDUAL'S IMMIGRATION STATUS, AND SHALL INCLUDE, BUT NOT
BE LIMITED TO, PART-TIME WORKERS, INDEPENDENT CONTRACTORS, DOMESTIC
WORKERS, HOME CARE AND PERSONAL CARE WORKERS, DAY LABORERS, FARMWORKERS
AND OTHER TEMPORARY AND SEASONAL WORKERS. THE TERM SHALL ALSO INCLUDE
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, REGARDLESS OF WHETHER DELIVERY OR
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06114-11-1
S. 1034--B 2
TRANSPORT IS CONDUCTED BY AN INDIVIDUAL OR ENTITY THAT WOULD OTHERWISE
BE DEEMED AN EMPLOYER UNDER THIS CHAPTER. THE TERM SHALL NOT INCLUDE
EMPLOYEES 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. 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 NINETEEN-A OF THIS CHAPTER.
(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 A HIGHLY CONTA-
GIOUS COMMUNICABLE DISEASE BY THE COMMISSIONER OF 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 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 STANDARD SHALL TAKE INTO ACCOUNT THE TYPES
OF RISKS PRESENT AT THE WORK SITE, INCLUDING THE PRESENCE OF THIRD
PARTIES. THE MODEL STANDARD 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 CONSIDER-
ATION 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 INFECTIOUS DISEASE SHALL TAKE INTO CONSIDER-
ATION ALL APPLICABLE FEDERAL STANDARDS TO THE EXTENT PRACTICABLE. THE
COMMISSIONER SHALL DETERMINE, IN HIS OR HER DISCRETION, WHICH LANGUAGES
TO PUBLISH THE STANDARD IN ADDITION TO ENGLISH AND SPANISH BASED ON THE
NUMBER OF INDIVIDUALS IN THE STATE POPULATION THAT SPEAK EACH LANGUAGE,
THE PREVALENCE OF CERTAIN LANGUAGES BEING SPOKEN IN PARTICULAR INDUS-
TRIES, AND ANY OTHER FACTOR THAT THE COMMISSIONER SHALL DEEM RELEVANT.
SUCH STANDARD SHALL INCLUDE, BUT NOT BE LIMITED TO, ESTABLISHING
REQUIREMENTS ON PROCEDURES AND METHODS FOR:
(A) EMPLOYEE HEALTH SCREENINGS;
(B) FACE COVERINGS;
S. 1034--B 3
(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 SHALL PROVIDE FOR A LIST OF
PPE THAT SATISFIES THE REQUIREMENTS, BASED ON HAZARD ASSESSMENTS FOR
EACH INDUSTRY;
(D) ACCESSIBLE WORKPLACE HAND HYGIENE STATIONS AND MAINTAINING HEALTHY
HAND HYGIENE AND THAT EMPLOYERS PROVIDE ADEQUATE BREAK TIMES FOR WORKERS
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 AT THE WORKSITE; LIMITING CAPACITY OF CUSTOMERS OR
CONSUMERS; DELIVERING SERVICES REMOTELY OR THROUGH CURBSIDE PICK-UP;
RECONFIGURING SPACES WHERE WORKERS 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, 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
RESPONSIBILITY FOR OVERSEEING COMPLIANCE WITH THE REQUIREMENTS OF THE
MODEL POLICY;
(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
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 STANDARD
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 INFECTIOUS DISEASE
S. 1034--B 4
EXPOSURE PREVENTION STANDARD AS NECESSARY PROVIDED THAT THE COMMISSIONER
SHALL INFORM EMPLOYERS OF THE CHANGES.
4. (A) EVERY 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 ALTER-
NATIVE PLAN THAT EQUALS OR EXCEEDS THE MINIMUM STANDARDS PROVIDED BY THE
MODEL STANDARD.
(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 REOPENING AFTER A PERIOD OF CLOSURE DUE TO AIRBORNE
INFECTIOUS DISEASE AND UPON HIRING. 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. WHEN AN
EMPLOYEE IDENTIFIES AS HIS OR HER PRIMARY LANGUAGE A LANGUAGE FOR WHICH
A MODEL DOCUMENT IS NOT AVAILABLE FROM THE COMMISSIONER, 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 WORKSITE. 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-
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
S. 1034--B 5
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 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 DILI-
GENCE, 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; AWARDING COSTS
AND REASONABLE ATTORNEYS' FEES TO THE EMPLOYEE; AND ORDERING PAYMENT OF
LIQUIDATED DAMAGES OF NO GREATER THAN TWENTY THOUSAND 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, COUNTER-
CLAIM, 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.
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
S. 1034--B 6
INJURE ANOTHER, THE COURT MAY IN ITS DISCRETION IMPOSE SANCTIONS AGAINST
THE ATTORNEY OR PARTY WHO BROUGHT SUCH ACTION, DEFENSE, COUNTERCLAIM OR
CROSSCLAIM.
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. The labor law is amended by adding a new section 27-d to read as
follows:
§ 27-D. WORKPLACE SAFETY COMMITTEES. 1. FOR THE PURPOSES OF THIS
SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
(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. 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 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.
S. 1034--B 7
(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.
5. EMPLOYERS SHALL PERMIT SAFETY COMMITTEE DESIGNEES TO ATTEND A
TRAINING, WITHOUT SUFFERING A LOSS OF PAY, ON THE FUNCTION OF WORKER
SAFETY COMMITTEES, RIGHTS ESTABLISHED UNDER THIS SECTION, AND AN INTRO-
DUCTION 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-
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 SHALL ADOPT AND AMEND RULES AND REGULATIONS TO
EFFECTUATE THE PROVISIONS AND PURPOSES OF THIS SECTION.
§ 3. Severability. If any provision of this act, or the application
thereof to any person or circumstances, is held invalid or unconstitu-
tional, that invalidity or unconstitutionality shall not affect other
provisions or applications of this act that can be given effect without
the invalid or unconstitutional provision or application, and to this
end the provisions of this act are severable.
§ 4. This act shall take effect on the thirtieth 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.
