Occupational Safety and Health

Employers Activate Your HERO Act Plans! NY Commissioner of Health Issues NY HERO Act Designation for COVID-19

September 7, 2021

By Stephanie H. Fedorka

On Sept. 6, 2021, Gov. Kathy Hochul directed the NYS Commissioner of Health to designate COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health. The designation is official and available on the NYS Department of Health (NYSDOH) website.

Read More >> Employers Activate Your HERO Act Plans! NY Commissioner of Health Issues NY HERO Act Designation for COVID-19

Must an Employer Offer a Reasonable Accommodation if a Federal Safety Regulation Prohibits Such Accommodation? 

July 7, 2021

By Richard S. Finkel

In a decision of interest to New York State employers subject to federal safety regulations, the Second Circuit Court of Appeals recently answered that question in the negative. In Bey v. City of New York1, the Court concluded that where a federal safety regulation expressly prohibits a requested medical accommodation, that regulation trumps the requirements imposed by the Americans with Disabilities Act (the ADA) and Title VII and shields the employer from liability under those statutes. 

Read More >> Must an Employer Offer a Reasonable Accommodation if a Federal Safety Regulation Prohibits Such Accommodation? 

Governor Cuomo Signs HERO Act Into Law

May 6, 2021

By Stephanie H. Fedorka

On May 5, 2021, Governor Cuomo officially signed the New York Health and Essential Rights Act (HERO Act) into law. The HERO Act effectively imposes significant obligations on covered employers to provide and maintain a safe workplace in the face of the ongoing COVID-19 pandemic, and for future airborne infectious disease outbreaks. As previously reported, the HERO Act amended the New York Labor Law by adding two new sections: (1) Section 218-b, which governs development and adoption of an airborne infectious disease prevention policy; and (2) Section 27-D, that requires employers to permit the creation of workplace safety committees. Both sections only apply to private sector employers. However, Section 27-D specifically only applies to private employers with at least 10 employees. 

Read More >> Governor Cuomo Signs HERO Act Into Law

New York State Legislature Passes HERO Act – Significant Workplace Health and Safety Obligations for Employers are on the Horizon

April 30, 2021

By Stephanie H. Fedorka

On April 20, 2021, the New York Legislature passed the “New York Health and Essential Rights Act” or “HERO Act.” To date, the bill has not been signed by the Governor, but we expect it to be executed in the near future. The bill, as written, would impose significant obligations on employers, regardless of size, in an effort to prevent exposure to airborne infectious diseases. 

Read More >> New York State Legislature Passes HERO Act – Significant Workplace Health and Safety Obligations for Employers are on the Horizon

New York Officially Lifts Travel Quarantine Requirement for Domestic Travelers

April 1, 2021

By Adam P. Mastroleo

On April 1, 2021 the New York State Department of Health (NYSDOH) officially updated its Interim Guidance for Quarantine Restrictions on Travelers Arriving in New York State to remove the quarantine requirement for domestic travelers arriving in New York State from other U.S. States or territories. This updated guidance document has been anticipated since Governor Cuomo announced on March 11, 2021, that the domestic traveler quarantine requirement would be lifted on April 1. 

Read More >> New York Officially Lifts Travel Quarantine Requirement for Domestic Travelers

New York Department of Labor Issues Guidance on Paid Leave for COVID-19 Vaccinations 

March 30, 2021

By Mary E. Moran

On March 12, 2021, Governor Cuomo signed a new law that grants paid leave to employees to get vaccinated for COVID-19. Under the statute, employees may take up to four hours of paid time off per vaccine injection. A link to our prior post discussing the statute is available here

Read More >> New York Department of Labor Issues Guidance on Paid Leave for COVID-19 Vaccinations 

The COVID-19 Pandemic: Recommendations for Employers

March 16, 2020

By Monica C. Barrett and Subhash Viswanathan

The COVID-19 pandemic has already caused severe disruption to many businesses across the country. Employers will be required to continue to monitor developments and adjust to changing circumstances in the coming weeks and possibly months. We provide the following recommendations for employers in dealing with the many employment-related issues that will inevitably arise.

Read More >> The COVID-19 Pandemic: Recommendations for Employers

OSHA Issues Proposed Rule on Electronic Recordkeeping Requirements

August 20, 2018

By Richard C. White

The Occupational Safety and Health Administration has issued a Notice of Proposed Rulemaking that would rescind the requirement for establishments with 250 or more employees to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries or Illnesses) and OSHA Form 301 (Injury and Illness Incident Report).  The proposed rule leaves in place the requirement for such establishments to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses).  The proposed rule also requires these establishments to submit their Employer Identification Number (EIN) electronically along with their data submissions.

Read More >> OSHA Issues Proposed Rule on Electronic Recordkeeping Requirements

An Update on OSHA’s Electronic Injury and Illness Reporting Rules

July 18, 2017

By Michael D. Billok

We have received a number of questions about the current status of OSHA’s new electronic injury and illness reporting rule, upon which we have previously reported here and here.  There is, yet again, more to report!

First things first:  the implementation date of the rule has been delayed from July 1, 2017, to December 1, 2017.  The reason for the delay is to give the new administration an opportunity to determine whether any changes to the rule are warranted as well as to give employers time to familiarize themselves with electronic reporting.  The Department of Labor did seek additional comments as part of the process.  We will keep you posted regarding any further delays in the implementation of, or changes to, the rule.

Second, the rule will likely go into effect in some form:  OSHA announced that its website at which employers can submit their Form 300A electronically will be live as of August 1 here.  All employers must submit their 2016 Form 300A via the website before December 1, 2017.

What is the Current Status of OSHA's Injury and Illness Reporting Rule?

February 20, 2017

By Michael D. Billok

As we previously reported on this blog, OSHA recently made sweeping changes to its injury and illness reporting rule.  The agency delayed enforcement of the rule until December 1, 2016.  Many industry advocates were hoping for a reprieve, and several industry groups, including the Associated Builders and Contractors and the National Association of Manufacturers, had filed suit, seeking a preliminary injunction to prevent the rule from going into effect.  Unfortunately, the injunction was denied and the rule did go into effect on December 1.  However, the rule is still being challenged.  Interestingly, the incoming administration recently jointly filed a letter with the court along with the plaintiffs, stating that each side planned to move for summary judgment, strongly suggesting that the incoming administration has no plans to revise or revoke the rule. One of the more troubling aspects of the rule was not in the rule itself, but in the preamble to the rule -- OSHA's stated position that it would consider blanket rules that require drug testing of employees after any accident to be unreasonable, i.e., to discourage the reporting of injuries and illnesses.  Without announcement, OSHA issued guidance on its position late last year that should ameliorate employers’ concerns.  Simply put, employers do not have to have reasonable suspicion of drug use, but reasonable suspicion that drug use could have led to the accident causing illness or injury.  OSHA provides the following examples: "Consider the example of a crane accident that injures several employees working nearby but not the operator.  The employer does not know the causes of the accident, but there is a reasonable possibility that it could have been caused by operator error or by mistakes made by other employees responsible for ensuring that the crane was in safe working condition.  In this scenario, it would be reasonable to require all employees whose conduct could have contributed to the accident to take a drug test, whether or not they reported an injury or illness.  Testing would be appropriate in these circumstances because there is a reasonable possibility that the results of drug testing could provide the employer insight on the root causes of the incident.  However, if the employer only tested the injured employees but did not test the operator and other employees whose conduct could have contributed to the incident, such disproportionate testing of reporting employees would likely violate section 1904.35(b)(1)(iv). Furthermore, drug testing an employee whose injury could not possibly have been caused by drug use would likely violate section 1904.35(b)(1)(iv).  For example, drug testing an employee for reporting a repetitive strain injury would likely not be objectively reasonable because drug use could not have contributed to the injury.  And, section 1904.35(b)(1)(iv) prohibits employers from administering a drug test in an unnecessarily punitive manner regardless of whether the employer had a reasonable basis for requiring the test." So, if an employee on a scaffold dropped a piece of lumber, striking an employee below in an area the employee was allowed to walk, it would not be proper to test the employee below, but it would be proper to test the employee on the scaffold, because operator error -- and possible drug impairment -- could have contributed to the accident. It still remains to be seen whether this rule will be rescinded through the Congressional Review Act or vacated through the lawsuit filed in the Northern District of Texas, but in the meantime, employers should make sure their policies regarding injury and illness reporting comport with the new requirements.

OSHA Announces Feral Cats Are Not Vermin

October 13, 2016

By Patrick V. Melfi
On October 4, 2016, the Occupational Safety and Health Administration issued a press release and announced that it was proposing changes to 18 separate regulations “as part of an ongoing effort to revise provisions in its standards that may be confusing, outdated or unnecessary.”  A summary of the proposed changes can be accessed here.  The proposals run across a wide spectrum from the technical (i.e., allowing ex-rays to be maintained in digital format); to the procedural (i.e., making the process safety management standard the same for construction and general industry); to the completely understandable (i.e., eliminating any uses of employee social security numbers in exposure monitoring); to the somewhat odd (i.e., eliminating feral cats from the definition of “vermin” in the shipyard equipment regulation).  On the last point, the agency press release noted that “OSHA recognizes that feral cats pose a minor, if any, threat, and tend to avoid human contact, and OSHA proposes to remove the term ‘feral cats’ from the definition of vermin in the standard.”  The deadline for submitting comments to any of the proposals is December 5, 2016.