FROM: Ostroff Associates

DATE: December 22, 2021

RE: New York State HERO Act: Workplace Safety Committees Proposed Rulemaking

Background

In accordance with the New York State HERO Act, the Department of Labor (DOL) is required to
promulgate regulations for the establishment of workplace safety committees. On December 22,
2021, DOL published the following proposed rulemaking provisions for public comment.

Committee Establishment and Employer Requirements

Under the proposed rules, employers must allow for the establishment of workplace safety
committees for each worksite following a written request for committee recognition by at least two
non-supervisory employees who work at a common worksite. If multiple written requests are
submitted to an employer, then the requests shall be combined and treated as one request.
Therefore, two non-supervisory employee requests do not have to be submitted together in order
to trigger the establishment of a workplace safety committee. However, each worksite is limited to
one workplace safety committee.

Once an employer has received a request for committee recognition, they must respond to the
request with “reasonable promptness.” Employers may deny requests if a worksite already has a
workplace safety committee and the employee should be referred to the previously established
committee. Furthermore, within five days of committee recognition, employers shall provide notice
to all employees at the worksite and employers must not interfere with the selection of non-
supervisory employees to a committee. Lastly, employers must allow for “geographically distinct
worksite committees.” This would include non-supervisory employees who work in multiple or
different worksites and travel regularly to different worksites.

Committee Selection and Composition

At worksites without a collective bargaining agreement (CBA) in place, non-supervisory committee

members must be selected by only non-supervisory employees. The selection process may feature,
but is not limited to, self-selection, nomination of co-workers, and elections. However, if there is a
CBA in place, committee member selection will be determined by the CBA representative.

Workplace safety committees must include at least two non-supervisory employees and at least one
employer representative. Non-supervisory employees may only be a member of one workplace
safety committee for a given employer. The ratio of non-supervisory employees to employer

1
representatives must not be less than two non-supervisory employees to one employee
representative at any given time. Committees shall have a maximum of 12 members in total or one-
third of the total number of employees at a worksite, whichever is fewer. However, if a worksite has
fewer than ten employees, the committee will have three members. Lastly, committees will be co-
chaired by a non-supervisory employee and an employer representative.

Committee Authority

Committees may take actions in a manner consistent with rules or procedures adopted by such
committee. If there are no rules or procedures adopted, then the committee may take action by a
majority vote. All rules and bylaws adopted by committees must be in accordance with the HERO
Act. Additionally, this includes, but is not limited to, selection of new members, term length of
members, and training of new members. Lastly, any bylaw that is in conflict with the HERO Act will
be considered ultra vires, meaning beyond the scope of the committee’s authority and invalid.

Committee members may provide an official training opportunity for members, but training must
not exceed four hours per year and training time will be without loss of pay. Meetings must be
scheduled in accordance with committee rules and meeting times must not unreasonably conflict
with employer business operations. Additionally, meetings may be scheduled at least once per
quarter and may include no more than two paid work hours per quarter. Lastly, committees are
allowed to conduct additional meetings, but these must be outside of work hours and do not count
for hours worked unless permission is given by an employer.

Employer Obligations

Employers are required to adhere to the following procedures:

• Respond in writing to each safety and health concern, hazard, complaint, or other violations
raised by the workplace safety committee or one of its committee members within a
reasonable time period.
• Respond to a request for policies or reports that relate to the duties of the workplace safety
committee by the committee or one of its members within a reasonable time period.
• Provide notice, where practicable and not prohibited by law, to the committee and its
members ahead of any visit at the worksite by a governmental agency enforcing safety and
health standards.
• Appoint an employer representative to the committee to act as co-chair. This employer
representative may be a non-supervisory employee or other representative.
• Permit members of the committee to attend a meeting for up to two hours per quarter and
an official training.
• No employer may interfere with the performance of the duties of the workplace safety
committee or its members.
• No employer will be required to disclose information or documentation to the workplace
safety committee or members where such disclosure is prohibited by law, contains the
personal identifying information of an employee as defined by Section 203-d of the Labor
Law (prohibit the unlawful sharing of an employee’s personal information), or is outside the
scope of information or documentation set forth by the HERO Act.

2
Definitions

‘‘Employee’’ means any person suffered or permitted to work for, at, or by an employer, 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.

‘‘Employer’’ means any person, entity, business, corporation, partnership, limited liability company,
or 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.
• Employees on paid or unpaid leave, including sick leave, leaves of absence, disciplinary
suspension, or any other type of temporary absence, are to be counted as long as the
employer has a reasonable expectation that the employee will later return to active
employment. If there is no employment relationship (as when an employee is laid off or
terminated, whether temporarily or permanently), such individual is not counted.
• Part-time, newly hired, temporary, and seasonal employees, like full-time employees, are
considered to be employees. Employees jointly employed by more than one employer shall
be counted by each employer, whether or not they are on the employer’s payroll records, in
determining employer coverage and employee eligibility to participate in the Workplace
Safety Committee

“Non-Supervisory Employee” means any employee who does not perform supervisory
responsibilities, which includes but is not limited to the authority to direct and/or control the work
performance of other employees. “Non-Supervisory employee” excludes managerial and executive
employees.

“Notice” shall mean a written, posted, or electronic method of providing information to an

individual that is reasonably calculated to provide actual notice but shall not require
acknowledgement of receipt.

“Temporary worksite” means a work location at which no employee works for fewer than twenty
working days.

“Worksite” means a single, physical location where services, operations, or other activities are
performed, provided that:
• Several worksites within a single location or building may exist if separate employers
conduct activities within the building. For example, an office building housing 50 different
businesses may contain 50 worksites, and a construction site with employees of several
different employers may contain several different worksites.
• A worksite may refer to either a single location or 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 may be considered a worksite if they are in reasonable geographic proximity,
are used by the employer for the same purpose, and share the same staff or equipment.
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.

3
 • 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. However, all operations of an Employer
within the same building will be considered a single worksite. For example, an Employer
that operates offices on numerous floors of a single building is operating a single worksite.
• Non-contiguous sites in the same geographic area that have separate management, produce
different products or provide different services, and have separate workforces do not
constitute a single worksite.
• The worksite of employment for employees whose primary duties require travel from point
to point, who telecommute, are out stationed, or whose primary duties involve work
outside any of the employer’s regular employment sites (e.g., railroad employees, bus
drivers, salespersons), shall be the worksite to which they are assigned as their employer’s
home base, from which their work is assigned, or to which they report.
• The term “Worksite” shall not include a Temporary worksite as defined in this section

Public Hearing

There will be a public hearing on the proposed rulemaking at 11:00 am, February 9th, 2022. The
location is yet to be determined and will be posted on the Department of Labor’s website. Public
comment will be accepted until five days after the last scheduled public hearing.