§ 218-B — Prevention of occupational exposure to an airborne infectious disease

New York § 218-B

• Jurisdiction: New York
• Law LAB: Labor
• Art. 7: General Provisions

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§ 218-b. Prevention of occupational exposure to an airborne infectious\ndisease. 1. For purposes of this section, the following terms shall have\nthe following meanings:\n (a) "Employee" shall mean any person providing labor or services for\nremuneration for a private entity or business within the state, without\nregard to an individual's immigration status, and shall include\npart-time workers, independent contractors, domestic workers, home care\nand personal care workers, day laborers, farmworkers and other temporary\nand seasonal workers. The term shall also include individuals working\nfor digital applications or platforms, staffing agencies, contractors or\nsubcontractors on behalf of the employer at any individual work site, as\nwell as any individual delivering goods or transporting people at, to or\nfrom the work site on behalf of the employer, regardless of whether\ndelivery or transport is conducted by an individual or entity that would\notherwise be deemed an employer under this chapter. The term shall not\ninclude employees or independent contractors of the state, any political\nsubdivision of the state, a public authority, or any other governmental\nagency or instrumentality.\n (b) "Work site" shall mean any physical space, including a vehicle,\nthat has been designated as the location where work is performed over\nwhich an employer has the ability to exercise control. The term shall\ninclude employer-provided housing and employer-provided transportation\nat, to or from the work site but shall not include the residence of the\nemployer or employee unless such residence has been provided by the\nemployer and is used as the primary place of work or such residence is\nprovided by an employer covered under the provisions of article\nnineteen-A of this chapter. The term shall not include a telecommuting\nor telework site unless the employer has the ability to exercise control\nof such site.\n (c) "Supervisor" or "supervisory employee" shall mean any person who\nhas the authority to direct and control the work performance of other\nemployees, or who has the managerial authority to take corrective action\nregarding the violation of the law, rules or regulations. This term\nshall not include any employee who is a member of a collective\nbargaining unit that primarily represents employees not otherwise deemed\nto be a supervisor or supervisory employee as defined by this\nsubdivision.\n (d) "Employer" shall mean any person, entity, business, corporation,\npartnership, limited liability company, or association employing,\nhiring, or paying for the labor of any individual in any occupation,\nindustry, trade, business, or service. The term shall not include the\nstate, any political subdivision of the state, a public authority, or\nany other governmental agency or instrumentality.\n (e) "Airborne infectious disease" shall mean any infectious viral,\nbacterial or fungal disease that is transmissible through the air in the\nform of aerosol particles or droplets and is designated by the\ncommissioner of health a highly contagious communicable disease that\npresents a serious risk of harm to the public health.\n 2. The commissioner, in consultation with the department of health,\nshall create and publish, in both English and Spanish, a model airborne\ninfectious disease exposure prevention standard for industries\nrepresenting a significant portion of the workforce, or those with\nunique characteristics requiring distinct standards, as determined by\nthe commissioner, in consultation with the commissioner of health. The\ncommissioner shall further create and publish, in English and in\nSpanish, a general model airborne infectious disease exposure prevention\nstandard applicable to all worksites not included in the specific\nindustry standards. Such model standards shall establish minimum\nrequirements for preventing exposure to airborne infectious diseases in\nthe workplace in order to protect the public and the workforce. The\nmodel infectious disease exposure prevention standards shall take into\naccount the types of risks present at any work site customarily\nassociated with each covered industry, including the presence of third\nparties. The model standards shall explicitly specify and distinguish\nthe extent to which the provisions are applicable for different levels\nof airborne infectious disease exposure, and shall take into\nconsideration circumstances where a state of emergency has or has not\nbeen declared due to an airborne infectious disease, and distinctions in\npolicies based on circumstances where a state of emergency has been\ndeclared due to an airborne infectious disease shall take into\nconsideration all applicable federal standards to the extent\npracticable. The commissioner shall determine, in his or her discretion,\nwhich languages to publish the standards in addition to English and\nSpanish based on the number of individuals in the state population that\nspeak each language, the prevalence of certain languages being spoken in\nparticular industries, and any other factor that the commissioner shall\ndeem relevant. Such standards shall include, but not be limited to,\nestablishing requirements on procedures and methods for:\n (a) Employee health screenings;\n (b) Face coverings;\n (c) Required personal protective equipment ("PPE") applicable to each\nindustry for eyes, face, head, and extremities, protective clothing,\nrespiratory devices, and protective shields and barriers, which shall be\nprovided, used, and maintained in a sanitary and reliable condition at\nthe expense of the employer. The standards shall provide for a list of\nPPE that satisfies the requirements, based on hazard assessments for\neach industry;\n (d) Accessible workplace hand hygiene stations and maintaining healthy\nhand hygiene and that employers provide adequate break times for\nemployees to use handwashing facilities as needed;\n (e) Regular cleaning and disinfecting of shared equipment and\nfrequently touched surfaces such as workstations, touchscreens,\ntelephones, handrails, and doorknobs, and all surfaces and washable\nitems in other high-risk areas such as restrooms, dining\nareas/breakrooms, locker rooms, vehicles and sleeping quarters;\n (f) Effective social distancing for employees and consumers or\ncustomers, as the risk of illness may warrant, including options for\nsocial distancing such as sign postage or markers; increasing physical\nspace between employees at the worksite; limiting capacity of customers\nor consumers; delivering services remotely or through curbside pick-up;\nreconfiguring spaces where employees congregate; flexible meeting and\ntravel options; flexible worksites; or implementing flexible work hours\nsuch as staggered shifts;\n (g) Compliance with mandatory or precautionary orders of isolation or\nquarantine that have been issued to employees, including the\nidentification and provision of separate and appropriate accommodations\nfor employees who reside in employer-provided housing in a manner\nconsistent with mandatory or precautionary orders of isolation and\nquarantine that have been issued to employers and employees;\n (h) Compliance with applicable engineering controls such as proper air\nflow or exhaust ventilation;\n (i) Designation of one or more supervisory employees to enforce\ncompliance with the airborne infectious disease exposure prevention plan\nand any other federal, state, or local guidance related to avoidance of\nspreading an airborne infectious disease as applicable to employees and\nthird parties such as customers, contractors, and members of the public\nwithin the workplace. No individual who is not a supervisory employee\nshall have responsibility for overseeing compliance with the\nrequirements of the airborne infectious disease exposure prevention\nplan;\n (j) Compliance with any applicable laws, rules, regulations,\nstandards, or guidance on notification to employees and relevant state\nand local agencies of potential exposure to airborne infectious disease\nat the work site; and\n (k) Verbal review of infectious disease standard, employer policies\nand employee rights under this section, except such review need not be\nprovided to any individuals working for staffing agencies, contractors\nor subcontractors on behalf of the employer at any individual work site,\nas well as any individual delivering goods or transporting people at, to\nor from the work site on behalf of the employer, where delivery or\ntransport is conducted by an individual or entity that would otherwise\nbe deemed an employer under this chapter.\n 3. The model airborne infectious disease exposure prevention standards\nshall also include anti-retaliation requirements pursuant to subdivision\neight of this section. The commissioner, in consultation with the\ndepartment of health, shall update the model airborne infectious disease\nexposure prevention standards as necessary provided that the\ncommissioner shall inform employers of the changes.\n 4. (a) Within thirty days after the commissioner publishes the model\ngeneral standard and the model standard relevant to the industry, each\nemployer shall establish an airborne infectious disease exposure\nprevention plan either by adopting the model standard relevant to their\nindustry promulgated pursuant to this section as its airborne infectious\ndisease exposure prevention plan or by establishing an alternative plan\nthat equals or exceeds the minimum standards provided by the model\nstandard. No employee who is not a supervisory employee shall have\nresponsibility for overseeing compliance with the requirements of such\nan airborne infectious disease exposure plan.\n (b) In any circumstance where an alternative airborne infectious\ndisease exposure prevention plan is adopted, the employer shall develop\nsuch plan pursuant to an agreement with the collective bargaining\nrepresentative, if any, or with meaningful participation of employees\nwhere there is no collective bargaining representative, for all aspects\nof the plan, and such plan shall be tailored and specific to hazards in\nthe specific industry and work sites of the employer.\n 5. Every employer shall provide the airborne infectious disease\nexposure prevention plan to his or her employees, in writing in English\nand in the language identified by each employee as the primary language\nof such employees within thirty days after adoption of the plan, within\nfifteen days after reopening after a period of closure due to airborne\ninfectious disease and, to a newly hired employee, upon hiring the new\nemployee. Businesses permitted to operate as of the effective date of\nthis section shall provide such a plan to all employees within sixty\ndays after the commissioner publishes the model standard relevant to the\nindustry. When an employee identifies as his or her primary language a\nlanguage for which a model standard is not available from the\ncommissioner, the employer shall comply with this paragraph by providing\nthat employee with an English-language notice.\n 6. The airborne infectious disease exposure prevention plan shall be\nposted in a visible and prominent location within each worksite, other\nthan a vehicle. An employer that provides an employee handbook to its\nemployees shall, in addition, include the airborne infectious disease\nexposure prevention plan in its handbook.\n 7. Each employer shall make the airborne infectious disease exposure\nprevention plan available, upon request, to all employees and\nindependent contractors, employee representatives, collective bargaining\nrepresentatives, and the commissioner and the commissioner of health.\n 8. No employer, or his or her agent, or person acting as or on behalf\nof a hiring entity, or the officer or agent of any entity, business,\ncorporation, partnership, or limited liability company, shall\ndiscriminate, threaten, retaliate against, or take adverse action\nagainst any employee for:\n (a) Exercising their rights under this section or under the applicable\nairborne infectious disease exposure prevention plan.\n (b) Reporting violations of this section or the applicable airborne\ninfectious disease exposure prevention plan to any state, local, or\nfederal government entity, public officer or elected official.\n (c) Reporting an airborne infectious disease exposure concern to, or\nseeking assistance or intervention with respect to airborne infectious\ndisease exposure concerns, to their employer, state, local, or federal\ngovernment entity, public officer or elected official.\n (d) Refusing to work where such employee reasonably believes, in good\nfaith, that such work exposes him or her, or other workers or the\npublic, to an unreasonable risk of exposure to an airborne infectious\ndisease due to the existence of working conditions that are inconsistent\nwith laws, rules, policies, orders of any governmental entity, including\nbut not limited to, the minimum standards provided by the model airborne\ninfectious disease exposure prevention standard, provided that the\nemployee, another employee, or employee representative notified the\nemployer of the inconsistent working conditions and the employer failed\nto cure the conditions or the employer had or should have had reason to\nknow about the inconsistent working conditions and maintained the\ninconsistent working conditions.\n 9. Nothing in this section shall be deemed to diminish the rights,\nprivileges, or remedies of any employee under any collective bargaining\nagreement. The provisions of this section may be waived by a collective\nbargaining agreement, provided that for such waiver to be valid, it\nshall explicitly reference this section.\n 10. (a) If after investigation the commissioner finds that such\nemployer or person has violated any provision of this section, the\ncommissioner may, by an order which shall describe particularly the\nnature of the violation, assess a civil penalty of not less than fifty\ndollars per day for failure to adopt an airborne infectious disease\nexposure prevention plan, or not less than one thousand dollars nor more\nthan ten thousand dollars for failure to abide by an adopted airborne\ninfectious disease exposure prevention plan. Provided, however, that if\nthe commissioner finds that the employer has violated the provisions of\nthis section in the preceding six years, he or she may assess a civil\npenalty of not less than two hundred dollars per day for failure to\nadopt an airborne infectious disease exposure prevention plan, or not\nless than one thousand dollars nor more than twenty thousand dollars for\nfailure to abide by an adopted airborne infectious disease exposure\nprevention plan. The commissioner may also order other appropriate\nrelief including enjoining the conduct of any person or employer in\naddition to any other remedies permitted by this section.\n (b) Any employee may bring a civil action seeking injunctive relief in\na court of competent jurisdiction against an employer alleged to have\nviolated the airborne infectious disease exposure prevention plan in a\nmanner that creates a substantial probability that death or serious\nphysical harm could result to the employee from a condition which\nexists, or from one or more practices, means, methods, operations or\nprocesses which have been adopted or are in use, by the employer at the\nwork site, unless the employer did not and could not, with the exercise\nof reasonable diligence, know of the presence of the violation. The\ncourt shall have jurisdiction to restrain such violations and to order\nall appropriate relief, including enjoining the conduct of the employer;\nand awarding costs and reasonable attorneys' fees to the employee. Where\nan action brought by an employee under this subdivision is found, at any\ntime during the proceedings or upon judgment, to be frivolous by the\ncourt, the court may award to the employer costs and reasonable\nattorneys' fees. The costs and fees awarded may be assessed either\nagainst the employee or against the attorney for the employee, or\nagainst both, as may be determined by the court, based upon the\ncircumstances of the case. Before bringing a civil action pursuant to\nthis subdivision, an employee must give the employer notice of the\nalleged violation. An employee may not bring a civil action until thirty\ndays after giving the employer notice of the alleged violation, except\nwhere an employee alleges with particularity that the employer has\ndemonstrated an unwillingness to cure a violation in bad faith, and may\nnot bring a civil action if the employer corrects the alleged violation.\nAn employee must bring a civil action pursuant to this subdivision\nwithin six months from the date the employee had knowledge of the\nviolation alleged in such civil action.\n 11. The provisions and remedies of paragraph (b) of subdivision one\nand paragraphs (a) and (b) of subdivision two of section two hundred\nfifteen of this article shall be applicable to subdivision eight of this\nsection. Where an action brought by an employee under this subdivision\nis found, at any time during the proceedings or upon judgment, to be\nfrivolous by the court, the court may award to the employer costs and\nreasonable attorneys' fees. The costs and fees awarded may be assessed\neither against the employee or against the attorney for the employee, or\nagainst both, as may be determined by the court, based upon the\ncircumstances of the case.\n 12. Where a violation of this section is alleged to have occurred, the\ncommissioner or attorney general may apply in the name of the people of\nthe state of New York for an order enjoining or restraining the\ncommission or continuance of the alleged unlawful acts. The\ncommissioner, in consultation with the commissioner of health, shall\npromulgate rules and regulations necessary to ensure compliance with\nthis chapter.\n 13. The commissioner, in consultation with the commissioner of health,\nshall adopt and amend rules and regulations to effectuate the provisions\nand purposes of this section.\n