The New York Department of Labor on December 22 released a new proposed regulation setting forth the workplace safety committee requirements under New York Labor Law Section 27-D, otherwise known as Section 2 of the New York HERO Act. Section 2 permits employees to form workplace health and safety committees that are empowered to review and provide feedback on safety and health issues. Employers should take notice of the proposed regulation because Section 2 is currently in effect, and the proposed regulation provides significant details that were missing from the law itself, including on steps companies can take to form these committees, and the roles and responsibilities of committee members.
The proposed regulation is subject to a notice and comment period, with a public hearing scheduled for February 9, 2022.
The proposed regulation clarifies that Section 2’s requirements only apply where an employer has at least 10 employees working in New York State. A single workplace safety committee may represent a single worksite (defined as a single, physical location where services, operations, or other activities are performed) or multiple geographically distinct worksites. In other words, employers do not need a separate workplace committee at each worksite.
The proposed regulation provides that a workplace safety committee does not need to be created unless and until two non-supervisory employees at a worksite submit a written request to the company seeking to form a committee. Once an employer receives any request regarding forming or joining a workplace safety committee, they must respond with “reasonable promptness.”
After an employer forms such a committee, it may deny subsequent requests to form a workplace safety committee. Instead, it can refer those requests to the existing committee for consideration—but the committee itself need not accept additional members. The employer must provide employees notice (written, posted, or electronic notice reasonably calculated to provide actual notice) of the committee’s formation within five days of the committee’s recognition by the employer.
Consistent with Section 2, the proposed regulation states that a committee must contain a ratio of two non-supervisory employees (defined as those without the authority to direct and/or control the work performance of other employees) for every employer/supervisory representative.
The proposed regulation confirms that a committee can have as few as three members (two non-supervisory and one employer representative) and as many as 12 (eight non-supervisory and four employer representatives).
Employers that establish workplace safety committees at worksites that have fewer than 10 total employees shall have three total members on the committee for that location, but employers with multiple locations need not form separate committees for each worksite in New York. The proposed regulation further provides that committees shall be co-chaired by a non-supervisory employee and an employer representative.
The proposed regulation explains that for non-unionized workforces, committee members “shall be selected by and amongst the employer’s non-supervisory employees as determined by the non-supervisory employees of the employer.” Examples of methods for selecting non-supervisory employees include self-selection, nomination by co-workers, and elections. At worksites where employees are unionized, the collective bargaining representative would be empowered to select the employee representatives.
Per the proposed regulation, workplace committee meetings may be conducted at least once per quarter, but only up to two hours of meeting time will be paid each quarter. Moreover, meetings cannot be scheduled at times that unreasonably conflict with business operations. While workplace committees may schedule additional meetings, they must be conducted outside of work hours, and time spent on those meetings does not need to be paid by the employer.
Committees can also conduct a training for members on the functions of the committee and an introduction to workplace health and safety. Time spent on these trainings must be treated as paid time for up to four hours per year.
Finally, other than the quarterly meetings, an employer may prohibit committee activities during work hours, and work on committees may not interfere with employee performance of work responsibilities.
After the establishment of a workplace safety committee, employers must do the following:
Because the proposed regulation will not take effect until after the rulemaking process is complete, employers need not take immediate action. Further, per the proposed regulation, employers would not need to take any action until they get written requests from two different employees to form a workplace safety committee.
That said, there are a few next steps that may be worth consideration, including the following:
Although the proposed regulation is not final, if adopted in its current form, there likely will be legal challenges to the final regulation, including on the basis that it conflicts with and is preempted by the requirements of the National Labor Relations Act.
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