September 14, 2020 New Requirement to Adopt Plan for Operations in the Event of a Declared Public Health Emergency
KEEPING YOU INFORMED…
New York recently enacted legislation (Labor Law § 27-c) requiring public employers, other than school districts and BOCES, to adopt a plan for operations if the Governor declares a public health emergency involving a communicable disease.[1] School districts and BOCES must modify their district-wide safety plans to include protocols that are “substantially consistent” with this legislation. All plans must be completed by April 1, 2021.
This legislation is in direct response to the COVID-19 pandemic and establishes restrictions on public employers which, pursuant to the Executive Orders encompassing NYS On Pause, were given more flexibility in directing their operations and making necessary modifications in order to provide essential services.
Required Plan Contents
The legislation sets forth seven categories of information and protocols that must be included in the plan. They are as follows:
1. Designation of Essential Employees and Contractors: A list and description of positions and titles considered to be essential in the event of a State-ordered reduction of in-person workforce, with a justification for that consideration.
a. “Essential” employees and contractors are those who are required to be physically present at the work site to perform their jobs.
b. Contractors are individuals performing services as a party to a contract with the State or a public employer.
2. Telecommuting Protocols: A description of protocols to be followed to enable all non-essential employees and contractors to telecommute.
a. The protocols must include, but are not limited to, “facilitating or requesting the procurement, distribution, downloading and installation of any needed devices or technology, including software, data, office laptops or cell phones, and the transferring of office phone lines to work or personal cell phones as practicable or applicable to the workplace.”
b. “Non-essential” employees are those public employees, and contractors, who are not required to be physically present at the work site to perform their jobs.
3. Reduce Overcrowding/Stagger Work Schedules: A description of how essential employees’ and contractors’ work shifts will be staggered to reduce overcrowding at worksites and on public transportation systems.
4. Personal Protective Equipment “Stash” and Storage: A description of the protocols to be implemented to procure personal protective equipment (“PPE”) (defined as “all equipment worn to minimize exposure to hazards, including gloves, masks, face shields, foot and eye protection, protective hearing devices, respirators, hard hats, and disposable gowns and aprons”).
a. The PPE “stash” must be at least equal to the amount needed to provide each essential employee and contractor with at least two pieces of each type of PPE, based upon job duties and needs, during any given work shift over at least six months.
b. There must also be a plan for storage to prevent degradation and permit immediate access.
5. Exposure: A description of protocols to be followed if an employee or contractor is exposed to a known case of a communicable disease that is the subject of the public health emergency, exhibits symptoms of the disease, or tests positive for the disease. These protocols must be designed to prevent the spread or contraction of the disease in the workplace.
a. The plan must include actions to immediately and thoroughly disinfect the affected work area, as well as common areas, surfaces and shared equipment that the employee or contractor may have touched.
b. The plan must detail the employer’s policy on available leave if the employee or contractor needs to be tested, treated, isolated or quarantined.
6. Contact Tracing: A protocol for documenting essential employees’ and contractors’ precise hours and work locations, including off-site visits, designed to aid in tracking the disease, identifying those who have been exposed, and facilitating the provision of any employment-related benefits that may be available.
7. Collaboration: A protocol for how the employer will work with entities in its locality to identify emergency housing for essential employees to further contain the spread of the disease, to the extent applicable to the needs of the workplace.
Plan Review with Unions
After the plan has been drafted, it must be distributed to each union (if applicable), with the opportunity for each union to review the draft and make recommendations. The law does not preclude an employer from involving unions in the drafting process or unions from making recommendations prior to the draft being finalized.
If any recommendations are received from a union, an employer must, within a reasonable amount of time, consider them and respond to them in writing. There is no obligation to agree to them.
The law contains an explicit provision indicating that it does not “impede, infringe, diminish or impair” public employees’ rights or benefits pursuant to a law, rule, regulation or collective bargaining agreement. In other words, prior to adopting the plan, employers remain obligated to negotiate over plan provisions affecting or modifying terms and conditions of employment. Following the adoption of the plan, employers remain obligated to negotiate over the impact of a plan provision not affecting or modifying terms and conditions of employment.
Plan Adoption & Publication
The final plan should be implemented by a duly adopted resolution voted upon at a public meeting. The plan must then be published in: (1) a clear and conspicuous location; (2) an employee handbook (if one is provided to employees); and (3) a location accessible on the employer’s website or on the internet accessible by employees. The law does not define “clear and conspicuous location.” It is our recommendation that the plan be published in the same areas as other employment-related postings (e.g., minimum wage notification).
Other Legal Issues
Employers are prohibited from taking retaliatory action or discriminating against any employee who makes suggested or recommended changes to the plan.
The NY Department of Labor (“the NYDOL”) will establish procedures for employees or contractors to report alleged violations of this new law. The NYDOL will also establish a dedicated webpage and hotline for public employees and contractors to report alleged violations of “any state law, regulation, rule or guidance related to occupational health and safety involving a communicable disease.” In other words, the legislation provides new bases upon which employees and contractors may file complaints pursuant to the Public Employee Safety & Health Act (PESH), the law governing workplace safety and health standards for New York public employers. Similar to alleged PESH violations, the NYSDOL webpage and hotline will permit the submission of anonymous complaints.
Conclusion
We recommend that you revisit the procedures that you implemented during (and since) the period in which the State required you to reduce your in-person non-essential workforce by 50%. These procedures should provide you with a baseline upon which to develop and draft your plan. We also suggest waiting for a while to see what guidance is prepared interpreting the legislation, or regional or State-wide plans are developed in response to the legislation, before trying to invent a new wheel.
If you have any questions regarding this legislation, or would like assistance with drafting your plan, determining which provisions might be subject to negotiations with your unions, or negotiating about them with your unions, 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 2020
[1] A “communicable disease” is defined as “an illness caused by an infectious agent or its toxins that occurs through the direct or indirect transmission of the infectious agent or its products from an infected individual or via an animal, vector or the inanimate environment to a susceptible animal or human host.”