NY HERO Act Workplace Safety Committees Proposed Regulations

On May 5, 2021, the New York HERO Act was enacted which in addition to requiring employers to create an airborne and infectious disease plan, also created New York Labor Law § 27-d, which requires private sector employers with 10 or more employees to permit the creation of joint employer-employee workplace health and safety committees effective November 1, 2021.

On December 22, 2021, proposed regulations interpreting workplace committees were published in the New York State Register. The proposed regulations provide insight for employers on how to comply with the safety committee requirements. Some highlights of the proposed regulations include the following:

Clarification that committee requirements only apply where an employer has at least 10 employees working in New York;
Clarification that employers do not need a separate workplace committee at each worksite in New York;
Clarification 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; and
Confirmation 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).

Next Steps for Employers

A public hearing on the proposed regulations will be held on February 9, 2022, at a location to be announced on the DOL’s website. Interested parties should consider submitting comments to the DOL in relation to these proposed regulations. In addition to the proposed regulations, employers should be mindful of the DOL’s frequently asked questions (FAQs) on the HERO Act which were released on September 30, 2021.

Because the proposed regulations will not take effect until after the rulemaking process is complete, employers need not take immediate action. Further, per the proposed regulations, employers would not need to take any action until they get written requests from two different employees to form a workplace safety committee.