NY Lab L § 218-B (2021)
2021 New York Laws LAB - Labor Article 7 - General Provisions 218-B - Prevention of Occupational Exposure to an Airborne Infectious Disease.

§ 218-b. Prevention of occupational exposure to an airborne infectious disease. 1. For purposes of this section, the following terms shall have the following meanings:  (a)  "Employee"  shall mean any person providing labor or services for remuneration for a private entity or business within the state,  without regard   to  an  individual's  immigration  status,  and  shall  include part-time workers, independent contractors, domestic workers, home  care and personal care workers, day laborers, farmworkers and other temporary and  seasonal  workers.  The term shall also include individuals working for digital applications or platforms, staffing agencies, contractors or subcontractors on behalf of the employer at any individual work site, as well as any individual delivering goods or transporting people at, to or from the work site on behalf of  the  employer,  regardless  of  whether delivery or transport is conducted by an individual or entity that would otherwise  be  deemed an employer under this chapter. The term shall not include employees or independent contractors of the state, any political subdivision of the state, a public authority, or any other  governmental agency or instrumentality.  (b)  "Work  site"  shall mean any physical space, including a vehicle, that has been designated as the location where work  is  performed  over which  an  employer  has the ability to exercise control. The term shall include employer-provided housing and  employer-provided  transportation at,  to or from the work site but shall not include the residence of the employer or employee unless such residence  has  been  provided  by  the employer  and  is used as the primary place of work or such residence is provided  by  an  employer  covered  under  the  provisions  of  article nineteen-A  of  this chapter. The term shall not include a telecommuting or telework site unless the employer has the ability to exercise control of such site.  (c) "Supervisor" or "supervisory employee" shall mean any  person  who has  the  authority  to direct and control the work performance of other employees, or who has the managerial authority to take corrective action regarding the violation of the law,  rules  or  regulations.  This  term shall  not  include  any  employee  who  is  a  member  of  a collective bargaining unit that primarily represents employees not otherwise deemed to  be  a  supervisor  or  supervisory  employee  as  defined  by   this subdivision.  (d)  "Employer"  shall mean any person, entity, business, corporation, partnership,  limited  liability  company,  or  association   employing, hiring,  or  paying  for  the labor of any individual in any occupation, industry, trade, business, or service. The term shall  not  include  the state,  any  political  subdivision of the state, a public authority, or any other governmental agency or instrumentality.  (e) "Airborne infectious disease" shall  mean  any  infectious  viral, bacterial or fungal disease that is transmissible through the air in the form  of  aerosol  particles  or  droplets  and  is  designated  by  the commissioner of health a highly  contagious  communicable  disease  that presents a serious risk of harm to the public health.   2.  The  commissioner,  in consultation with the department of health, shall create and publish, in both English and Spanish, a model  airborne infectious   disease   exposure   prevention   standard  for  industries representing a significant portion  of  the  workforce,  or  those  with unique  characteristics  requiring  distinct standards, as determined by the commissioner, in consultation with the commissioner of  health.  The commissioner  shall  further  create  and  publish,  in  English  and in Spanish, a general model airborne infectious disease exposure prevention standard applicable to  all  worksites  not  included  in  the  specific industry   standards.  Such  model  standards  shall  establish  minimum  requirements for preventing exposure to airborne infectious diseases  in the  workplace  in  order  to  protect the public and the workforce. The model infectious disease exposure prevention standards shall  take  into account  the  types  of  risks  present  at  any  work  site customarily associated with each covered industry, including the presence  of  third parties.  The  model  standards shall explicitly specify and distinguish the extent to which the provisions are applicable for  different  levels of   airborne   infectious   disease   exposure,  and  shall  take  into consideration circumstances where a state of emergency has  or  has  not been declared due to an airborne infectious disease, and distinctions in policies  based  on  circumstances  where  a state of emergency has been declared  due  to  an  airborne  infectious  disease  shall  take   into consideration   all   applicable   federal   standards   to  the  extent practicable. The commissioner shall determine, in his or her discretion, which languages to publish the standards  in  addition  to  English  and Spanish  based on the number of individuals in the state population that speak each language, the prevalence of certain languages being spoken in particular industries, and any other factor that the commissioner  shall deem  relevant.  Such  standards  shall  include, but not be limited to, establishing requirements on procedures and methods for:  (a) Employee health screenings;  (b) Face coverings;  (c) Required personal protective equipment ("PPE") applicable to  each industry  for  eyes,  face,  head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, which shall be provided, used, and maintained in a sanitary and reliable  condition  at the  expense  of the employer. The standards shall provide for a list of PPE that satisfies the requirements, based  on  hazard  assessments  for each industry;  (d) Accessible workplace hand hygiene stations and maintaining healthy hand  hygiene  and  that  employers  provide  adequate  break  times for employees to use handwashing facilities as needed;  (e)  Regular  cleaning  and  disinfecting  of  shared  equipment   and frequently   touched   surfaces   such  as  workstations,  touchscreens, telephones, handrails, and doorknobs,  and  all  surfaces  and  washable items   in   other   high-risk   areas   such   as   restrooms,   dining areas/breakrooms, locker rooms, vehicles and sleeping quarters;  (f)  Effective  social  distancing  for  employees  and  consumers  or customers,  as  the  risk  of illness may warrant, including options for social distancing such as sign postage or markers;  increasing  physical space  between employees at the worksite; limiting capacity of customers or consumers; delivering services remotely or through curbside  pick-up; reconfiguring  spaces  where  employees congregate; flexible meeting and travel options; flexible worksites; or implementing flexible work  hours such as staggered shifts;  (g)  Compliance with mandatory or precautionary orders of isolation or quarantine  that  have  been  issued   to   employees,   including   the identification  and provision of separate and appropriate accommodations for employees who  reside  in  employer-provided  housing  in  a  manner consistent  with  mandatory  or  precautionary  orders  of isolation and quarantine that have been issued to employers and employees;  (h) Compliance with applicable engineering controls such as proper air flow or exhaust ventilation;  (i) Designation of  one  or  more  supervisory  employees  to  enforce compliance with the airborne infectious disease exposure prevention plan and  any other federal, state, or local guidance related to avoidance of spreading an airborne infectious disease as applicable to employees  and third  parties such as customers, contractors, and members of the public  within the workplace. No individual who is not  a  supervisory  employee shall   have   responsibility   for   overseeing   compliance  with  the requirements of the  airborne  infectious  disease  exposure  prevention plan;  (j)   Compliance   with   any  applicable  laws,  rules,  regulations, standards, or guidance on notification to employees and  relevant  state and  local agencies of potential exposure to airborne infectious disease at the work site; and  (k) Verbal review of infectious disease  standard,  employer  policies and  employee  rights under this section, except such review need not be provided to any individuals working for staffing  agencies,  contractors or subcontractors on behalf of the employer at any individual work site, as well as any individual delivering goods or transporting people at, to or  from  the  work  site  on  behalf of the employer, where delivery or transport is conducted by an individual or entity that  would  otherwise be deemed an employer under this chapter.   3. The model airborne infectious disease exposure prevention standards shall also include anti-retaliation requirements pursuant to subdivision eight  of  this  section.  The  commissioner,  in  consultation with the department of health, shall update the model airborne infectious disease exposure  prevention  standards   as   necessary   provided   that   the commissioner shall inform employers of the changes.   4.  (a)  Within thirty days after the commissioner publishes the model general standard and the model standard relevant to the  industry,  each employer   shall  establish  an  airborne  infectious  disease  exposure prevention plan either by adopting the model standard relevant to  their industry promulgated pursuant to this section as its airborne infectious disease  exposure prevention plan or by establishing an alternative plan that equals or exceeds the  minimum  standards  provided  by  the  model standard.  No  employee  who  is  not  a supervisory employee shall have responsibility for overseeing compliance with the requirements  of  such an airborne infectious disease exposure plan.  (b)  In  any  circumstance  where  an  alternative airborne infectious disease exposure prevention plan is adopted, the employer shall  develop such  plan  pursuant  to  an  agreement  with  the collective bargaining representative, if any, or with meaningful  participation  of  employees where  there is no collective bargaining representative, for all aspects of the plan, and such plan shall be tailored and specific to hazards  in the specific industry and work sites of the employer.   5.  Every  employer  shall  provide  the  airborne  infectious disease exposure prevention plan to his or her employees, in writing in  English and  in the language identified by each employee as the primary language of such employees within thirty days after adoption of the plan,  within fifteen  days  after reopening after a period of closure due to airborne infectious disease and, to a newly hired employee, upon hiring  the  new employee.  Businesses  permitted  to operate as of the effective date of this section shall provide such a plan to  all  employees  within  sixty days after the commissioner publishes the model standard relevant to the industry.  When  an employee identifies as his or her primary language a language  for  which  a  model  standard  is  not  available  from   the commissioner, the employer shall comply with this paragraph by providing that employee with an English-language notice.   6.  The  airborne infectious disease exposure prevention plan shall be posted in a visible and prominent location within each  worksite,  other than  a  vehicle.  An employer that provides an employee handbook to its employees shall, in addition, include the  airborne  infectious  disease exposure prevention plan in its handbook.    7.  Each  employer shall make the airborne infectious disease exposure prevention  plan  available,  upon  request,  to   all   employees   and independent contractors, employee representatives, collective bargaining representatives, and the commissioner and the commissioner of health.   8.  No employer, or his or her agent, or person acting as or on behalf of a hiring entity, or the officer or agent  of  any  entity,  business, corporation,   partnership,   or   limited   liability   company,  shall discriminate,  threaten,  retaliate  against,  or  take  adverse  action against any employee for:  (a) Exercising their rights under this section or under the applicable airborne infectious disease exposure prevention plan.  (b)  Reporting  violations  of this section or the applicable airborne infectious disease exposure prevention plan  to  any  state,  local,  or federal government entity, public officer or elected official.  (c)  Reporting  an airborne infectious disease exposure concern to, or seeking assistance or intervention with respect to  airborne  infectious disease  exposure  concerns, to their employer, state, local, or federal government entity, public officer or elected official.  (d) Refusing to work where such employee reasonably believes, in  good faith,  that  such  work  exposes  him  or  her, or other workers or the public, to an unreasonable risk of exposure to  an  airborne  infectious disease due to the existence of working conditions that are inconsistent with laws, rules, policies, orders of any governmental entity, including but not limited to, the minimum standards provided by the model airborne infectious  disease  exposure  prevention  standard,  provided  that the employee, another employee,  or  employee  representative  notified  the employer  of the inconsistent working conditions and the employer failed to cure the conditions or the employer had or should have had reason  to know  about  the  inconsistent  working  conditions  and  maintained the inconsistent working conditions.   9. Nothing in this section shall be deemed  to  diminish  the  rights, privileges,  or remedies of any employee under any collective bargaining agreement. The provisions of this section may be waived by a  collective bargaining  agreement,  provided  that  for  such waiver to be valid, it shall explicitly reference this section.   10. (a) If  after  investigation  the  commissioner  finds  that  such employer  or  person  has  violated  any  provision of this section, the commissioner may, by an order  which  shall  describe  particularly  the nature  of  the violation, assess a civil penalty of not less than fifty dollars per day for failure to  adopt  an  airborne  infectious  disease exposure prevention plan, or not less than one thousand dollars nor more than  ten  thousand  dollars for failure to abide by an adopted airborne infectious disease exposure prevention plan. Provided, however, that  if the  commissioner finds that the employer has violated the provisions of this section in the preceding six years, he or she may  assess  a  civil penalty  of  not  less  than  two hundred dollars per day for failure to adopt an airborne infectious disease exposure prevention  plan,  or  not less than one thousand dollars nor more than twenty thousand dollars for failure  to  abide  by  an  adopted airborne infectious disease exposure prevention plan. The  commissioner  may  also  order  other  appropriate relief  including  enjoining  the  conduct  of any person or employer in addition to any other remedies permitted by this section.  (b) Any employee may bring a civil action seeking injunctive relief in a court of competent jurisdiction against an employer  alleged  to  have violated  the  airborne infectious disease exposure prevention plan in a manner that creates a substantial  probability  that  death  or  serious physical  harm  could  result  to  the  employee  from a condition which exists, or from one or more practices,  means,  methods,  operations  or  processes  which have been adopted or are in use, by the employer at the work site, unless the employer did not and could not, with the  exercise of  reasonable  diligence,  know  of  the presence of the violation. The court  shall  have jurisdiction to restrain such violations and to order all appropriate relief, including enjoining the conduct of the employer; and awarding costs and reasonable attorneys' fees to the employee. Where an action brought by an employee under this subdivision is found, at any time during the proceedings or upon judgment, to  be  frivolous  by  the court,  the  court  may  award  to  the  employer  costs  and reasonable attorneys' fees. The costs and  fees  awarded  may  be  assessed  either against  the  employee  or  against  the  attorney  for the employee, or against both, as  may  be  determined  by  the  court,  based  upon  the circumstances  of  the  case. Before bringing a civil action pursuant to this subdivision, an employee must  give  the  employer  notice  of  the alleged violation. An employee may not bring a civil action until thirty days  after  giving the employer notice of the alleged violation, except where an employee alleges  with  particularity  that  the  employer  has demonstrated  an unwillingness to cure a violation in bad faith, and may not bring a civil action if the employer corrects the alleged violation. An employee must bring a  civil  action  pursuant  to  this  subdivision within  six  months  from  the  date  the  employee had knowledge of the violation alleged in such civil action.   11. The provisions and remedies of paragraph (b)  of  subdivision  one and  paragraphs  (a)  and  (b) of subdivision two of section two hundred fifteen of this article shall be applicable to subdivision eight of this section. Where an action brought by an employee under  this  subdivision is  found,  at  any  time during the proceedings or upon judgment, to be frivolous by the court, the court may award to the  employer  costs  and reasonable  attorneys'  fees. The costs and fees awarded may be assessed either against the employee or against the attorney for the employee, or against both, as  may  be  determined  by  the  court,  based  upon  the circumstances of the case.   12. Where a violation of this section is alleged to have occurred, the commissioner  or attorney general may apply in the name of the people of the state of  New  York  for  an  order  enjoining  or  restraining  the commission   or   continuance   of   the   alleged  unlawful  acts.  The commissioner, in consultation with the  commissioner  of  health,  shall promulgate  rules  and  regulations  necessary to ensure compliance with this chapter.   13. The commissioner, in consultation with the commissioner of health, shall adopt and amend rules and regulations to effectuate the provisions and purposes of this section.