23 months into pandemic, employee safety committees due

Almost two years since the COVID shutdown, employers now have guidance on a key component of New York’s HERO Act, which among other things required employers to allow for the establishment of workplace safety committees.

The state Department of Labor recently released a proposed rule providing details on the composition and operation of these committees, which would allow workers at firms with 10 or more employees to raise workplace health and safety issues and review health and safety policies.

While the workplace safety committee provision technically took effect Nov. 1, legal and safety experts say employers were fuzzy on their obligations until the DOL released the proposed rule on Dec. 22.

"Until the proposed rule came out, employers didn’t really know what they needed to do to be in compliance," says Christine Malafi, a senior partner and chair of the corporate department at Campolo, Middleton & McCormick LLP in Ronkonkoma.

The employers had the potential setup of committees on their radar, but without further detailed guidance were more immediately focused on creating airborne infectious disease exposure prevention plans, another component of the HERO Act, she said.

Employers must keep in effect those prevention plans until Feb. 15 — or later if New York’s Health Commissioner Mary Bassett extends the designation of COVID-19 as a highly contagious communicable disease that presents a serious risk of harm beyond that date, Malafi says. Experts expect an extension.

Not just about COVID

But consider that the HERO Act’s safety committee provision isn’t just about coronavirus prevention — it also deals with overall workplace safety.

Also, keep in mind, employers are under no obligation to create these committees on their own, but must allow for them to be formed upon a written request by employees, Malafi says.

And even now, before the proposed rule is finalized, employers would be wise to allow committees to form if requested, says Doug Rowe, a partner at East Meadow-based Certilman Balin Adler & Hyman.

"Technically, the safety committee law is in effect [since Nov. 1] even though there are proposed regulations," he says. "If employees now approach the employer with a request to form a safety committee, it would be advisable to follow the law, as well as the proposed regulations which merely lay out the procedures for the law."

Specifically, the guidance dictates, among other things, that, "committees may be established for each worksite following a written request for recognition by at least two non-supervisory employees who work at the worksite," says Malafi. "Multiple requests for committee recognition shall be combined and treated as a single request to form a committee," the rule says.

Asking for it

The committee must be comprised of at least two non-supervisory employees and at least one employer representative. Upon the receipt of a request for recognition, employers shall respond to such request with "reasonable promptness."

Among their obligations, after the establishment of a workplace safety committee, employers must respond, in writing, within a reasonable time period, to each safety and health concern, hazard, complaint and other violations raised by the workplace safety committee or one of its members, Malafi says.

Before it can take effect, the proposed rule is subject to a public hearing and a five-day comment period this month. "After that, the DOL can move forward within a year of the date that the rule was proposed," which is Dec. 22, the agency said in an email.

Still, Rowe doesn’t "see why it wouldn’t be approved more or less in current form."

But as of yet, "We haven’t heard of any committees being formed or asked to be formed," says Rick Maher, chief executive of Turning Point HCM, a Mount Sinai-based HR outsourcing form.

Keeping up to date

He thinks that’s because "there was ambiguity" prior to the December guidance being released.

Rather, Maher’s been more focused on helping clients get their airborne safety prevention plans in place and into their handbooks. He’s been using a software that essentially creates electronic employee handbooks that can be automatically updated and distributed to employees with any changes including those regarding the HERO Act.

Charles Hunt, chief operating officer at ABLE Safety Consulting in Massapequa Park, which provides OSHA compliance assistance and training, thinks on the smaller-company level, there probably won’t be much movement with committees forming.

"Most companies that have 10 employees aren’t going to have a safety committee," he says, noting even for 50-employee firms it’s rare. "The larger the company the more likely it is."

He said for many smaller firms this isn’t even on their minds.

"Educating business leaders prior to a violation is our goal," Hunt says.