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In my July 13, 2021 post, “NYS HERO Act has Employers Asking, WTH?” (I said it then, and I’ll say it again, there’s no “O” word, you need an “O” word if the acronym is HERO!), I wrote about Section 1 of the Act. At that time, most employers were aware of the requirement to adopt a safety and health plan by August 5, 2021, and distribute their plan to all employees within 30 days. Then, on September 6, 2021, COVID-19 was designated a serious public health risk under the HERO Act. As a result, employers were ordered to implement their plans (if this post gets any drier, the words will blow off the screen) and keep them in effect until at least October 31, 2021. BTW, the state has not indicated whether that designation will be extended.  UPDATE: The NYS Commissioner of Health has extended the the designation of COVID-19 as a serious health threat until December 15, 2021. Therefore, employer safety and health plans must remain in effect through at least December 15, 2021.  

That brings us to November 1, 2021, when Section 2 of the HERO Act goes into effect. Section 2 requires employers with 10 or more employees to allow employees to create a joint labor-management workplace safety committee (that sounds very union-like to me). Although similar committees are typical in a unionized environment, Section 2 applies to all employers covered by the HERO Act.

Like a toddler promising to pick up their toys before dinnertime, the NYS Department of Labor (“NYS DOL”) committed to providing updated employer guidance on Section 2 before Monday, November 1, 2021. Unfortunately, once again, it appears the toddler’s promise is more likely to be honored. (Come on, be fair, they still have one more day – Sunday – to release the guidance.) So, for now, I can at least explain some of the basics:

• At the request of one or more of its employees, an employer of 10 or more must allow employees to establish and administer a joint labor-management workplace safety committee.
• The term “employees,” as it relates to Section 2, is defined as all employees in the state of New York, except employees of the state, any political subdivision of the state, a public authority, or any other governmental agency (of course NYS doesn’t include itself in these things!).
• The committee must include both employer and employee representatives, with at least two-thirds being non-supervisory employees.
• The employee members of the committee must be chosen by and from the employer’s non-supervisory employees. The employer is prohibited from interfering with the selection of non-supervisory employees to serve on the committee.
• Further, the committee must be co-chaired by a representative of the non-supervisory employees and an employer representative.
• Section 2 also authorizes the creation of multiple committees representing geographically distinct worksites.

Under Section 2 of the HERO Act, workplace safety committees have authorization to:

1. Raise health and safety concerns, hazards, complaints, and violations to the employer, to which the employer must respond;
2. Review and provide feedback on any workplace health and safety policy required by the HERO Act or the workers’ compensation law; 
3. Review the adoption of any workplace policy in response to any health or safety law, ordinance, rule, regulation, executive order, or other related directives; 
4. Participate in any site visit by any governmental entity responsible for enforcing safety and health standards; 
5. Review any report filed by the employer related to the health and safety of the workplace; and 
6. Hold a scheduled meeting during work hours, at least once per quarter.

The employer must also permit and pay safety committee designees to attend training on the function of worker safety committees, rights established under Section 2 of the HERO Act, and an introduction to occupational safety and health.

Unionized employers should note that different requirements apply if a collective bargaining agreement (“CBA”) is in place. Under a CBA, the collective bargaining representative will be responsible for selecting employees to serve as members of the committee. In addition, provisions of Section 2 may be waived by a CBA that explicitly references the section.

Like Section 1 of the HERO Act, Section 2 contains anti-retaliation provisions. These include, among other points, prohibiting the employer from retaliating against any employee who participates in the establishment or activities of a workplace safety committee. Violations of the anti-retaliation provision may result in penalties, including:

1. Assessment of civil penalties of $1,000 to $10,000;
2. Injunctive (legal) relief; 
3. Liquidated damages of up to $20,000; 
4. Payment of costs and reasonable attorneys’ fees to the employee; 
5. An order to rehire or reinstate the employee to their former position, with the restoration of seniority, or an award of lost compensation, damages, and front pay in place of reinstatement.

Finally, one bright spot, an employer with an existing safety committee that meets the HERO Act’s requirements is not required to create an additional committee (wow, you really stretched to find that “bright spot!”).

Based on my experience working with small and mid-sized businesses, most are likely unfamiliar with joint employee/employer workplace committees of any type. Given that unfamiliarity, the complexity of the rules, and the significant financial penalties associated with noncompliance, preparation is critical to correctly responding when employees request to establish a workplace safety committee. Therefore, employers should work with an HR compliance expert (I’m sure any subliminal reference to your consulting firm, HR Compliance Experts, was purely coincidental and not a shameless plug) or their employment attorney when faced with employee requests to establish a workplace safety committee.      

Posted by Frank Cania, president of HR Compliance Experts LLC.

© 2021 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

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