February 23, 2021 New Legislation for State Disaster Emergency Involving a Communicable Disease
KEEPING YOU INFORMED…
Last week, the State enacted legislation modifying the requirements for public employers to adopt a plan for operations in the event of a state disaster emergency involving a communicable disease (Labor Law § 27-c). School districts and BOCES continue to be required to incorporate protocols that are “substantially consistent” with this legislation into their district-wide safety plans (Education Law § 2801-a). Below is a list of changes to the law.
1. Plan Application: The plans now apply to the continuation of operations if the Governor declares “a state disaster emergency involving a communicable disease.” Previously, the law used the phrase “public health emergency.”
2. Communicable Disease: The definition has been modified to remove an illness that is transmitted from “an animal, vector or the inanimate environment to a susceptible animal or human host.”
3. Contractors: All references to contractors have been removed from the law. Thus, an employer’s obligations extend only to its own workforce.
4. Essential/Non-Essential Employees:
a. Employer Discretion: The law now provides that an employer has the sole discretion to modify who is an essential or non-essential employee. This is consistent with the advice we previously gave regarding how to reduce your in-person workforce pursuant to the now-expired Executive Order 202.4. We continue to recommend that you have a rational basis for modifying essential/non-essential designations.
b. Essential Positions: The plan need now only list and describe the types of positions considered to be essential. Previously, the law required a list and description of the positions and titles.
c. Justification: The plan no longer needs to include a justification for why a position and title have been determined to be essential.
d. Protocols for Non-Essential Employees to Telecommute:
i. Description of Protocols: The description no longer needs to be “specific.”
ii. Equipment: Previously, the law required the protocols to include facilitating or requesting the procurement, distribution and installation of office laptops or cell phones. This requirement has been modified to provide that the protocols “may include devices.”
5. Personal Protective Equipment (PPE): The law deletes the requirement to procure and maintain a PPE “stash” sufficient to provide each essential employee with at least two pieces of each type of PPE during any given work shift over at least six months. Instead, employers are required to procure and maintain PPE for essential employees “in a quantity sufficient to provide [PPE] to each essential employee during any given work shift.” In other words, you must maintain enough PPE so that you do not run out.
6. Department of Health Requirements: There is a new requirement that the plan set forth other department of health requirements such as contact “tracing or testing, social distancing, hand hygiene and disinfectant, or mask wearing.”
7. Employee Protections:
a. Recommendations: The law prohibits employers from retaliating or discriminating against any employee who makes a recommendation on the plan content. The protection for employees who make suggestions has been deleted. This is largely a distinction without a difference and appears to merely conform the language to other provisions in the law.
b. Complaints: The to-be-established procedures for employees to complain to the Department of Labor about violations will only apply to “alleged” violations, and not “alleged or believed” violations. The Department is no longer required to establish a dedicated “hotline” for complaints.
8. Deadlines:
a. Final Plan Deadline: The law previously provided that the plans had to be finalized by October 7, 2020. The Governor’s approval memo indicated that he had secured an agreement with the Legislature to extend the deadline to April 1, 2021. This date has now been codified.
b. Deadline to Provide Plan to Unions: There was previously no deadline for providing the draft plan to the unions representing an employer’s employees. There is now a deadline of 150 days from the effective date of the legislation to provide the draft plan to unions and “to the relevant labor-management committees.” This new language is problematic.
First, the law continues to only require an employer to consider, and respond to, recommendations from its unions. There is no corresponding obligation to consider, and respond to, recommendations from a labor-management committee. Instead, the amended law only imposes a deadline to share the plan with a labor-management committee. We recommend that you provide the draft plan to your unions and, if applicable, labor-management committees. You should respond to recommendations from a union, regardless of whether they are made individually or as part of a collective labor-management committee response.
Next, the new deadline makes no sense in the context of the April 1 deadline. On the one hand, if the 150-day deadline starts from the effective date of the prior version of the law, then it has already passed without having given any advance notice to affected employers. If, instead, it starts from the date of the amended law, then the deadline to share the plan with unions and labor-management committees will fall after the deadline by which plans must be finalized.
For these reasons, we recommend that you continue to work within the April 1 deadline and provide a draft plan to your unions and, if applicable, labor-management committees, as soon as possible. We will let you know if the State clarifies or modifies these deadlines.
If you have any questions regarding this legislation or complying with it, please contact Alyson Mathews by email at am@lambbarnosky.com, or any of our other labor and employment law attorneys by calling 631-694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2021
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[1] The legislation uses the term “contract tracing,” which we believe was intended to be “contact tracing.”