§ 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
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 digital applications or platforms, 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 transport is conducted by an individual or entity that would
otherwise be deemed an employer under this chapter. The term shall not
include employees or independent 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
nineteen-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
bargaining 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
commissioner of health a highly contagious communicable disease 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 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 infectious 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 standards shall take into
account the types of risks present at any work site customarily
associated with each covered industry, including the presence of third
parties. The model 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 infectious disease shall take into
consideration all applicable federal standards to the extent
practicable. The commissioner shall determine, in his or her discretion,
which languages to publish the standards 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 industries, and any other factor that the commissioner shall
deem relevant. Such standards 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 standards 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
employees to use handwashing facilities as needed;

(e) Regular cleaning and disinfecting of shared equipment and
frequently touched surfaces such as workstations, touchscreens,
telephones, 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
customers, as the risk of illness may warrant, including options for
social distancing such as sign postage or markers; increasing physical
space between employees at the worksite; limiting capacity of customers
or consumers; delivering services remotely or through curbside pick-up;
reconfiguring spaces where 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
identification 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;

(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. No individual who is not a supervisory employee
shall have responsibility for overseeing compliance with the
requirements of the airborne infectious disease exposure prevention
plan;

(j) Compliance with any applicable laws, rules, regulations,
standards, 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 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 infectious disease
exposure prevention standards as necessary provided that the
commissioner shall inform employers of the changes.

4. (a) 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
standard. No employee who is not a supervisory employee shall have
responsibility 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
representative, 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
exposure 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 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 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 standard 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 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
independent contractors, employee representatives, collective bargaining
representatives, and the commissioner and the commissioner of 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
discriminate, 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
inconsistent 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;
and awarding costs and reasonable attorneys' fees to the employee. Where
an action brought by an employee under 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 knowledge 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 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.

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
commission 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.