Employers Should Watch For New NY Department Of Labor Regulations Requiring The Implementation Of Specific Measures To Prevent Transmission Of Airborne Infectious Diseases In The Workplace

Written By: David T. Azrin Eugene H. Goldberg

group of work colleagues wearing masks

On May 5, 2021, Governor Cuomo signed a new law directing the state Department of Labor (DOL), in consultation with the NYS Department of Health (DOH), to issue regulations giving employers clear guidance on specific measures they must take to prevent the spread of airborne infectious diseases in the workplace.

The statute fills a gap caused by the fact that the federal Occupational Safety and Health Administration (OSHA) has only issued guidelines, not specific standards, for workplace exposure to Covid-19.  In addition, OSHA has not aggressively enforced its guidelines.  Covid-19 hot spots have occurred in some businesses, among them, the meatpacking industry. 

The new law requires the DOL, in consultation with the state DOH, to create specific minimum standards to prevent airborne infectious communicable diseases in the workplace.  Standards may involve, but are not limited to, a combination of factors such as employee health standards, face masks, personal protective equipment, regular cleaning of the workplace, social distancing, and installing engineering controls involving ventilation.  Standards may designate supervisory employees to enforce compliance. 
Not all diseases are covered.  The disease must be designated by the NYS Commissioner of Health as highly contagious and presenting a serious risk of public harm transmissible through the air or in droplets.

The DOL standards will vary for different industries.  These standards, when issued, will apply to workplaces except if an employer adopts its own alternative more stringent standards, or as determined in a collective bargaining agreement.  If there is no employee bargaining unit, the employer may develop a plan with the participation of his employees.  The alternative standards must equal or exceed the minimum DOL standards. 

The standards must include provisions preventing retaliation against an employee for exercising his rights under the new law. 
The law requires the DOL to issue the standards within 30 days, or by June 4, 2021.  The DOL will be responsible for enforcement of the standards.

When the standards are issued and/or an employer issues its own alternative standards, employers must notify employees.  The employer must provide a written infectious disease exposure plan to existing employees and new employees upon their hiring. Additionally, the employer must post its plan.  If the employer has an employee handbook, the standards also must be included in the handbook.

Effective in six months, employers must permit employees to choose representatives for a workplace safety committee to interact with management regarding issues related to airborne infectious diseases.   Employees campaigning to become a safety committee member or engaged in safety committee activities must be free from the threat of employer retaliation. Employees are to be paid to attend such meetings and for safety training. 

The new law governs all employer-employee relationships, excepting state and local government employees.   The new law encourages collective employee activity in selecting representatives to negotiate with employers over exposure safety.    
Employers should watch for the DOL’s issuance of standards for their industry in the coming months. 

about the authors

Eugene H. Goldberg


​Mr. Goldberg has practiced construction law for over 40 years on all sides of the construction triangle (contractor owner designer), including materialmen, engineers retained by architects, inspectors approving the release of monies under building loans, and sureties. He emphasizes insurance coverage in his handling of matters.

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