STATE OF NEW YORK
________________________________________________________________________
6768
2021-2022 Regular Sessions
IN SENATE
May 14, 2021
___________
Introduced by Sen. GIANARIS -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules
AN ACT to amend the labor law, in relation to preventing occupational
exposure to an airborne infectious disease; and to amend a chapter of
the laws of 2021 amending the labor law relating to preventing occu-
pational exposure to an airborne infectious disease, as proposed in
legislative bills numbers S.1034-B and A. 2681-B, in relation to the
effectiveness thereof
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 218-b of the labor law, as added by a chapter of
2 the laws of 2021 amending the labor law relating to preventing occupa-
3 tional exposure to an airborne infectious disease, as proposed in legis-
4 lative bills numbers S.1034-B and A. 2681-B, is amended to read as
5 follows:
6 § 218-b. Prevention of occupational exposure to an airborne infectious
7 disease. 1. For purposes of this section, the following terms shall
8 have the following meanings:
9 (a) "Employee" shall mean any person providing labor or services for
10 remuneration for a private entity or business within the state, without
11 regard to an individual's immigration status, and shall include[, but
12 not be limited to,] part-time workers, independent contractors, domestic
13 workers, home care and personal care workers, day laborers, farmworkers
14 and other temporary and seasonal workers. The term shall also include
15 individuals working for digital applications or platforms, staffing
16 agencies, contractors or subcontractors on behalf of the employer at any
17 individual work site, as well as any individual delivering goods or
18 transporting people at, to or from the work site on behalf of the
19 employer, regardless of whether delivery or transport is conducted by an
20 individual or entity that would otherwise be deemed an employer under
21 this chapter. The term shall not include employees or independent
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06114-12-1
S. 6768 2
1 contractors of the state, any political subdivision of the state, a
2 public authority, or any other governmental agency or instrumentality.
3 (b) "Work site" shall mean any physical space, including a vehicle,
4 that has been designated as the location where work is performed over
5 which an employer has the ability to exercise control. The term shall
6 include employer-provided housing and employer-provided transportation
7 at, to or from the work site but shall not include the residence of the
8 employer or employee unless such residence has been provided by the
9 employer and is used as the primary place of work or such residence is
10 provided by an employer covered under the provisions of article nine-
11 teen-A of this chapter. The term shall not include a telecommuting or
12 telework site unless the employer has the ability to exercise control of
13 such site.
14 (c) "Supervisor" or "supervisory employee" shall mean any person who
15 has the authority to direct and control the work performance of other
16 employees, or who has the managerial authority to take corrective action
17 regarding the violation of the law, rules or regulations. This term
18 shall not include any employee who is a member of a collective bargain-
19 ing unit that primarily represents employees not otherwise deemed to be
20 a supervisor or supervisory employee as defined by this subdivision.
21 (d) "Employer" shall mean any person, entity, business, corporation,
22 partnership, limited liability company, or association employing,
23 hiring, or paying for the labor of any individual in any occupation,
24 industry, trade, business, or service. The term shall not include the
25 state, any political subdivision of the state, a public authority, or
26 any other governmental agency or instrumentality.
27 (e) "Airborne infectious disease" shall mean any infectious viral,
28 bacterial or fungal disease that is transmissible through the air in the
29 form of aerosol particles or droplets and is designated by the commis-
30 sioner of health a highly contagious communicable disease [by the
31 commissioner of health that presents a serious risk of harm to the
32 public health] that presents a serious risk of harm to the public
33 health.
34 2. The commissioner, in consultation with the department of health,
35 shall create and publish, in both English and Spanish, a model airborne
36 infectious disease exposure prevention standard for [all work sites,
37 differentiated by industry, to] industries representing a significant
38 portion of the workforce, or those with unique characteristics requiring
39 distinct standards, as determined by the commissioner, in consultation
40 with the commissioner of health. The commissioner shall further create
41 and publish, in English and in Spanish, a general model airborne infec-
42 tious disease exposure prevention standard applicable to all worksites
43 not included in the specific industry standards. Such model standards
44 shall establish minimum requirements for preventing exposure to airborne
45 infectious diseases in the workplace in order to protect the public and
46 the workforce. The model infectious disease exposure prevention [stand-
47 ard] standards shall take into account the types of risks present at
48 [the] any work site customarily associated with each covered industry,
49 including the presence of third parties. The model [standard] standards
50 shall explicitly specify and distinguish the extent to which the
51 provisions are applicable for different levels of airborne infectious
52 disease exposure, and shall take into consideration circumstances where
53 a state of emergency has or has not been declared due to an airborne
54 infectious disease, and distinctions in policies based on circumstances
55 where a state of emergency has been declared due to an airborne infec-
56 tious disease shall take into consideration all applicable federal stan-
S. 6768 3
1 dards to the extent practicable. The commissioner shall determine, in
2 his or her discretion, which languages to publish the [standard] stand-
3 ards in addition to English and Spanish based on the number of individ-
4 uals in the state population that speak each language, the prevalence of
5 certain languages being spoken in particular industries, and any other
6 factor that the commissioner shall deem relevant. Such [standard] stand-
7 ards shall include, but not be limited to, establishing requirements on
8 procedures and methods for:
9 (a) Employee health screenings;
10 (b) Face coverings;
11 (c) Required personal protective equipment ("PPE") applicable to each
12 industry for eyes, face, head, and extremities, protective clothing,
13 respiratory devices, and protective shields and barriers, which shall be
14 provided, used, and maintained in a sanitary and reliable condition at
15 the expense of the employer. The [standard] standards shall provide for
16 a list of PPE that satisfies the requirements, based on hazard assess-
17 ments for each industry;
18 (d) Accessible workplace hand hygiene stations and maintaining healthy
19 hand hygiene and that employers provide adequate break times for [work-
20 ers] employees to use handwashing facilities as needed;
21 (e) Regular cleaning and disinfecting of shared equipment and
22 frequently touched surfaces such as workstations, touchscreens, tele-
23 phones, handrails, and doorknobs, and all surfaces and washable items in
24 other high-risk areas such as restrooms, dining areas/breakrooms, locker
25 rooms, vehicles and sleeping quarters;
26 (f) Effective social distancing for employees and consumers or custom-
27 ers, as the risk of illness may warrant, including options for social
28 distancing such as sign postage or markers; increasing physical space
29 between [workers] employees at the worksite; limiting capacity of
30 customers or consumers; delivering services remotely or through curbside
31 pick-up; reconfiguring spaces where [workers] employees congregate;
32 flexible meeting and travel options; flexible worksites; or implementing
33 flexible work hours such as staggered shifts;
34 (g) Compliance with mandatory or precautionary orders of isolation or
35 quarantine that have been issued to employees, including the identifica-
36 tion and provision of separate and appropriate accommodations for
37 employees who reside in employer-provided housing in a manner consistent
38 with mandatory or precautionary orders of isolation and quarantine that
39 have been issued to employers and employees;
40 (h) Compliance with applicable engineering controls such as proper air
41 flow[,] or exhaust ventilation[, or other special design requirements];
42 (i) Designation of one or more supervisory employees to enforce
43 compliance with the airborne infectious disease exposure prevention plan
44 and any other federal, state, or local guidance related to avoidance of
45 spreading an airborne infectious disease as applicable to employees and
46 third parties such as customers, contractors, and members of the public
47 within the workplace. [Non-supervisory line employees shall not bear] No
48 individual who is not a supervisory employee shall have responsibility
49 for overseeing compliance with the requirements of the [model policy]
50 airborne infectious disease exposure prevention plan;
51 (j) Compliance with any applicable laws, rules, regulations, stand-
52 ards, or guidance on notification to employees and relevant state and
53 local agencies of potential exposure to airborne infectious disease at
54 the work site; and
55 (k) Verbal review of infectious disease standard, employer policies
56 and employee rights under this section, except such review need not be
S. 6768 4
1 provided to any individuals working for staffing agencies, contractors
2 or subcontractors on behalf of the employer at any individual work
3 site, as well as any individual delivering goods or transporting
4 people at, to or from the work site on behalf of the employer, where
5 delivery or transport is conducted by an individual or entity that
6 would otherwise be deemed an employer under this chapter.
7 3. The model airborne infectious disease exposure prevention [stand-
8 ard] standards shall also include anti-retaliation requirements pursuant
9 to subdivision eight of this section. The commissioner, in consultation
10 with the department of health, shall update the model airborne infec-
11 tious disease exposure prevention [standard] standards as necessary
12 provided that the commissioner shall inform employers of the changes.
13 4. (a) [Every] Within thirty days after the commissioner publishes the
14 model general standard and the model standard relevant to the industry,
15 each employer shall establish an airborne infectious disease exposure
16 prevention plan either by adopting the model standard relevant to their
17 industry promulgated pursuant to this section as its airborne infectious
18 disease exposure prevention plan or by establishing an alternative plan
19 that equals or exceeds the minimum standards provided by the model stan-
20 dard. No employee who is not a supervisory employee shall have respon-
21 sibility for overseeing compliance with the requirements of such an
22 airborne infectious disease exposure plan.
23 (b) In any circumstance where an alternative airborne infectious
24 disease exposure prevention plan is adopted, the employer shall develop
25 such plan pursuant to an agreement with the collective bargaining repre-
26 sentative, if any, or with meaningful participation of employees where
27 there is no collective bargaining representative, for all aspects of the
28 plan, and such plan shall be tailored and specific to hazards in the
29 specific industry and work sites of the employer.
30 5. Every employer shall provide the airborne infectious disease expo-
31 sure prevention plan to his or her employees, in writing in English and
32 in the language identified by each employee as the primary language of
33 such employees [upon] within thirty days after adoption of the plan,
34 within fifteen days after reopening after a period of closure due to
35 airborne infectious disease and, to a newly hired employee, upon hiring
36 the new employee. Businesses permitted to operate as of the effective
37 date of this section shall provide such a plan to all employees [upon
38 the effective date of this act and upon hiring] within sixty days after
39 the commissioner publishes the model standard relevant to the industry.
40 When an employee identifies as his or her primary language a language
41 for which a model [document] standard is not available from the commis-
42 sioner, the employer shall comply with this paragraph by providing that
43 employee with an English-language notice.
44 6. The airborne infectious disease exposure prevention plan shall be
45 posted in a visible and prominent location within [the] each worksite,
46 other than a vehicle. An employer that provides an employee handbook to
47 its employees shall, in addition, include the airborne infectious
48 disease exposure prevention plan in its handbook.
49 7. Each employer shall make the airborne infectious disease exposure
50 prevention plan available, upon request, to all employees and independ-
51 ent contractors, employee representatives, collective bargaining repre-
52 sentatives, and the commissioner and the commissioner of [public]
53 health.
54 8. No employer, or his or her agent, or person acting as or on behalf
55 of a hiring entity, or the officer or agent of any entity, business,
56 corporation, partnership, or limited liability company, shall discrimi-
S. 6768 5
1 nate, threaten, retaliate against, or take adverse action against any
2 employee for:
3 (a) Exercising their rights under this section or under the applicable
4 airborne infectious disease exposure prevention plan.
5 (b) Reporting violations of this section or the applicable airborne
6 infectious disease exposure prevention plan to any state, local, or
7 federal government entity, public officer or elected official.
8 (c) Reporting an airborne infectious disease exposure concern to, or
9 seeking assistance or intervention with respect to airborne infectious
10 disease exposure concerns, to their employer, state, local, or federal
11 government entity, public officer or elected official.
12 (d) Refusing to work where such employee reasonably believes, in good
13 faith, that such work exposes him or her, or other workers or the
14 public, to an unreasonable risk of exposure to an airborne infectious
15 disease due to the existence of working conditions that are inconsistent
16 with laws, rules, policies, orders of any governmental entity, including
17 but not limited to, the minimum standards provided by the model airborne
18 infectious disease exposure prevention standard, provided that the
19 employee, another employee, or employee representative notified the
20 employer of the inconsistent working conditions and the employer failed
21 to cure the conditions or the employer had or should have had reason to
22 know about the inconsistent working conditions and maintained the incon-
23 sistent working conditions.
24 9. Nothing in this section shall be deemed to diminish the rights,
25 privileges, or remedies of any employee under any collective bargaining
26 agreement. The provisions of this section may be waived by a collective
27 bargaining agreement, provided that for such waiver to be valid, it
28 shall explicitly reference this section.
29 10. (a) If after investigation the commissioner finds that such
30 employer or person has violated any provision of this section, the
31 commissioner may, by an order which shall describe particularly the
32 nature of the violation, assess a civil penalty of not less than fifty
33 dollars per day for failure to adopt an airborne infectious disease
34 exposure prevention plan, or not less than one thousand dollars nor more
35 than ten thousand dollars for failure to abide by an adopted airborne
36 infectious disease exposure prevention plan. Provided, however, that if
37 the commissioner finds that the employer has violated the provisions of
38 this section in the preceding six years, he or she may assess a civil
39 penalty of not less than two hundred dollars per day for failure to
40 adopt an airborne infectious disease exposure prevention plan, or not
41 less than one thousand dollars nor more than twenty thousand dollars for
42 failure to abide by an adopted airborne infectious disease exposure
43 prevention plan. The commissioner may also order other appropriate
44 relief including enjoining the conduct of any person or employer in
45 addition to any other remedies permitted by this section.
46 (b) Any employee may bring a civil action seeking injunctive relief in
47 a court of competent jurisdiction against an employer alleged to have
48 violated the airborne infectious disease exposure prevention plan in a
49 manner that creates a substantial probability that death or serious
50 physical harm could result to the employee from a condition which
51 exists, or from one or more practices, means, methods, operations or
52 processes which have been adopted or are in use, by the employer at the
53 work site, unless the employer did not and could not, with the exercise
54 of reasonable diligence, know of the presence of the violation. The
55 court shall have jurisdiction to restrain such violations and to order
56 all appropriate relief, including enjoining the conduct of the employer;
S. 6768 6
1 and awarding costs and reasonable attorneys' fees to the employee[; and
2 ordering payment of liquidated damages of no greater than twenty thou-
3 sand dollars, unless the employer proves a good faith basis to believe
4 that the established health and safety measures were in compliance with
5 the applicable airborne infectious disease standard]. Where an action
6 brought by an employee under [the provisions of this section, or a
7 defense, counterclaim, or crossclaim brought by an employer in response
8 thereto, is found upon judgment to be completely without merit in law
9 and undertaken primarily to harass or maliciously injure another, the
10 court may in its discretion impose sanctions against the attorney or
11 party who brought such action, defense, counterclaim or crossclaim.]
12 this subdivision is found, at any time during the proceedings or upon
13 judgment, to be frivolous by the court, the court may award to the
14 employer costs and reasonable attorneys' fees. The costs and fees
15 awarded may be assessed either against the employee or against the
16 attorney for the employee, or against both, as may be determined by the
17 court, based upon the circumstances of the case. Before bringing a
18 civil action pursuant to this subdivision, an employee must give the
19 employer notice of the alleged violation. An employee may not bring a
20 civil action until thirty days after giving the employer notice of the
21 alleged violation, except where an employee alleges with particularity
22 that the employer has demonstrated an unwillingness to cure a violation
23 in bad faith, and may not bring a civil action if the employer corrects
24 the alleged violation. An employee must bring a civil action pursuant to
25 this subdivision within six months from the date the employee had know-
26 ledge of the violation alleged in such civil action.
27 11. The provisions and remedies of paragraph (b) of subdivision one
28 and paragraphs (a) and (b) of subdivision two of section two hundred
29 fifteen of this article shall be applicable to subdivision eight of this
30 section. Where an action brought by an employee under [the provisions
31 of this section, or a defense, counterclaim, or crossclaim brought by an
32 employer in response thereto, is found upon judgment to be completely
33 without merit in law and undertaken primarily to harass or maliciously
34 injure another, the court may in its discretion impose sanctions against
35 the attorney or party who brought such action, defense, counterclaim or
36 crossclaim.] this subdivision is found, at any time during the
37 proceedings or upon judgment, to be frivolous by the court, the court
38 may award to the employer costs and reasonable attorneys' fees. The
39 costs and fees awarded may be assessed either against the employee or
40 against the attorney for the employee, or against both, as may be deter-
41 mined by the court, based upon the circumstances of the case.
42 12. Where a violation of this section is alleged to have occurred, the
43 commissioner or attorney general may apply in the name of the people of
44 the state of New York for an order enjoining or restraining the commis-
45 sion or continuance of the alleged unlawful acts. The commissioner, in
46 consultation with the commissioner of health, shall promulgate rules and
47 regulations necessary to ensure compliance with this chapter.
48 13. The commissioner, in consultation with the commissioner of health,
49 shall adopt and amend rules and regulations to effectuate the provisions
50 and purposes of this section.
51 § 2. Section 27-d of the labor law, as added by a chapter of the laws
52 of 2021 amending the labor law relating to preventing occupational
53 exposure to an airborne infectious disease as proposed in legislative
54 bills numbers S.1034-B and A. 2681-B, is amended to read as follows:
55 § 27-d. Workplace safety committees. 1. For the purposes of this
56 section, the following terms shall have the following meanings:
S. 6768 7
1 (a) "Employer" shall mean any person, entity, business, corporation,
2 partnership, limited liability company, or an association employing at
3 least ten employees. The term shall not include the state, any political
4 subdivision of the state, a public authority, or any other governmental
5 agency or instrumentality.
6 (b) "Employee" shall include all employees in the state, except for
7 employees of the state, any political subdivision of the state, a public
8 authority, or any other governmental agency or instrumentality.
9 2. Employers shall permit employees to establish and administer a
10 joint labor-management workplace safety committee, but not more than one
11 committee per worksite, provided however that an employer that already
12 has a workplace safety committee that is otherwise consistent with the
13 requirements of this section, shall be exempted from creating an addi-
14 tional safety committee under this section. Each workplace safety
15 committee shall be composed of employee and employer designees, provided
16 at least two-thirds are non-supervisory employees. Employee members of
17 the committee shall be selected by, and from among, non-supervisory
18 employees. Committees shall be co-chaired by a representative of the
19 employer and non-supervisory employees. Where there is a collective
20 bargaining agreement in place, the collective bargaining representative
21 shall be responsible for the selection of employees to serve as members
22 of the committee. Committees representing geographically distinct work-
23 sites may also be formed as necessary.
24 3. No employer shall interfere with the selection of employees who
25 shall serve on such committee or who serve as the workplace safety
26 designee or with such employees' performance of the duties authorized
27 under this section.
28 4. Each workplace safety committee and workplace safety designee shall
29 be authorized to perform the following tasks, including but not limited
30 to:
31 (a) Raise health and safety concerns, hazards, complaints and
32 violations to the employer to which the employer must respond.
33 (b) Review any policy put in place in the workplace required by any
34 provision of this chapter [or any provision of the workers' compensation
35 law] relating to occupational safety and health and provide feedback to
36 such policy in a manner consistent with any provision of law.
37 (c) Review the adoption of any policy in the workplace in response to
38 any health or safety law, ordinance, rule, regulation, executive order,
39 or other related directive.
40 (d) Participate in any site visit by any governmental entity responsi-
41 ble for enforcing safety and health standards [in a manner consistent
42 with any provision of law] unless otherwise prohibited by law.
43 (e) Review any report filed by the employer related to the health and
44 safety of the workplace in a manner consistent with any provision of
45 law.
46 (f) Regularly schedule a meeting during work hours at least once a
47 quarter that shall last no longer than two hours.
48 5. Employers shall permit safety committee designees to attend a
49 training of no longer than four hours, without suffering a loss of pay,
50 on the function of worker safety committees, rights established under
51 this section, and an introduction to occupational safety and health.
52 6. Any employee who participates in the activities or establishment of
53 a workplace safety committee shall not be subject to retaliation for any
54 actions taken pursuant to their participation. Violations of this subdi-
55 vision shall be deemed to be a violation of paragraph (a) of subdivision
56 one of section two hundred fifteen of this chapter and the civil penal-
S. 6768 8
1 ties and remedies of paragraph (b) of subdivision one and paragraphs (a)
2 and (b) of subdivision two of section two hundred fifteen of this chap-
3 ter shall be applicable to this subdivision.
4 7. Nothing in this section shall be deemed to diminish the rights,
5 privileges, or remedies of any employee under any collective bargaining
6 agreement. The provisions of this section may be waived by a collective
7 bargaining agreement, provided that for such waiver to be valid, it
8 shall explicitly reference this section.
9 8. The [department] commissioner shall adopt and amend rules and regu-
10 lations to effectuate the provisions and purposes of this section.
11 § 3. Section 4 of a chapter of the laws of 2021 amending the labor
12 law relating to preventing occupational exposure to an airborne infec-
13 tious disease as proposed in legislative bills numbers S.1034-B and A.
14 2681-B, is amended to read as follows:
15 § 4. This act shall take effect on the [thirtieth] sixtieth day after
16 it shall have become a law; provided, however, that section two of this
17 act shall take effect on the one hundred eightieth day after it shall
18 have become a law. Effective immediately, the addition, amendment and/or
19 repeal of any rule or regulation necessary for the implementation of
20 this act on its effective date are authorized to be made and completed
21 on or before such effective date.
22 § 4. This act shall take effect immediately; provided that sections
23 one and two of this act shall take effect on the same date and in the
24 same manner as a chapter of the laws of 2021 amending the labor law
25 relating to preventing occupational exposure to an airborne infectious
26 disease, as proposed in legislative bills numbers S.1034-B and A.
27 2681-B, takes effect.