From time to time, Keane & Beane, P.C., issues Legal Alerts pertaining to new legislation or recent cases of interest.
New York’s legislature enacted, and Governor Cuomo signed, a bill creating Labor Law §27-c, amending Labor Law §27-1 and adding a new provision to Education Law §2801-a. Labor Law §27-c requires public employers to develop operation plans in the event of certain declared public health emergencies. Education Law §2801-a requires school districts to develop plans consistent with the new Labor Law requirement. The law went into effect on September 7, 2020, and the protocols must be in place within thirty days.
The new law requires public employers to prepare a plan for the continuation of operations in the event that the Governor declares a public health emergency involving a communicable disease. Public employers include the State of New York and divisions thereof, counties, cities, towns, villages, public authorities, commissions and public benefit corporations as well as other agencies that exercise governmental power under New York law. Although the definition of public employer excludes school districts and Boards of Cooperative Educational Services, these educational institutions must prepare plans consistent with Labor Law §27-c as part of their school safety plans pursuant to newly added subsection (2)(m) of Education Law §2801-a.
Operations Plan Requirements
The operations plan must include, at minimum, the following:
- A list and description of positions and titles considered essential with justification for that determination;
- The specific protocols that will be followed to enable non-essential employees and contractors to telecommute. This must include, at minimum, 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 telephone lines to work or personal cell phones, to the extent practicable or applicable to the workplace;
- A description of how the employer will, to the extent possible, stagger work shifts of essential employees and contractors to reduce workplace and public transportation overcrowding;
- Protocols to be implemented to secure personal protective equipment (PPE) sufficient to supply essential workers with 2 pieces of each PPE device needed for each work shift for at least six months. This must include a plan for storage of such equipment to prevent degradation and permit immediate access in the event of an emergency declaration;
- Protocols to prevent spread in the workplace in the event an employee or contractor is exposed, exhibits symptoms, or tests positive for the relevant communicable disease. Such protocols must include disinfection of the individual’s work area and common areas, and address the policy on available leave with respect to testing, treatment, isolation or quarantine;
- Protocols for documenting precise hours and work locations of essential workers for purposes of aiding in tracking the disease and identifying exposed workers in order to facilitate the provision of any benefits that may be available to them on that basis; and
- Protocols for coordinating with the locality to identify sites for emergency housing for essential employees to contain the spread of the disease, to the extent applicable to the needs of the workplace.
Sharing the Operations Plan with Bargaining Units
Pursuant to the statute, employers must present the plan as drafted to all applicable duly recognized or certified representatives of employees. The units may then review the plan and make recommendations. Any such recommendations must be considered by the employer, and responded to in writing within a reasonable time-frame. Employers are prohibited from taking retaliatory action or discriminating against any employee for making recommendations. The statute does not preclude employee representatives from making recommendations prior to completion of the draft plan.
The final version of the plan must be published in a “clear and conspicuous location,” in any employee handbooks provided to employees, and either on the employer’s website or on the internet accessible by employees.
Public Employee/Contractor Webpage and Hotline
The new law also adds subsection 6-a to Labor Law § 27-a. The subsection requires the Department of Labor to establish a webpage and hotline for public employees and contractors to report alleged violations of any New York State law, regulation, rule or guidance related to occupational health and safety involving a communicable disease. Such reports may be made anonymously.
Should you have any questions or concerns regarding this legal alert or require further assistance with this topic, please feel free to contact Susan Fine, Jaclyn G. Goldberg, Stephanie M. Roebuck or one of our attorneys in the Education Law or Municipal Law departments.
