N.Y. Labor Law § 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.