The following article was authored by Michael L. Taub. Michael L. Taub is a Partner at The Platta Law Firm, PLLC in New York City. He has been a member of the New York Bar for over 39 years.
The New York State Legislature is considering legislation, known as the Temperature Extreme Mitigation Program (the “T.E.M.P. Act”) which would establish climatic standards in the workplace. The law would cover extreme temperatures on both sides of the spectrum, so that workers would gain protection during both winter and summer months. There are two Bills under consideration, one originating from each chamber; the bills are officially known as A.3321, and S. 1604, respectively. The Bill would be codified by adding Article 20-D to the New York Labor Law.
The Bills’ sponsors are Assembly Member Latoya Joyner (D-Bronx), and Senator Jessica Ramos (D-Queens).
The legislative findings set forth in the Senate Bill include statements that “New Yorkers, working both in outdoor and indoor sites, are exposed to extreme temperatures due to climate change”, which “involves both skyrocketing heat in the summer and freezing cold in the winter.” The findings go on to cite the number of heat-related emergency hospital visits and deaths as provided by the New York City Mayor’s Office, and the number of ice, sleet and snow-related injuries. The Senate legislation then “finds and declares that the government is obligated to ensure that employers provide safe conditions for their employees.”
The scope of the Senate Bill ranges from the very general to the very specific and would mandate various provisions when the temperature exceeds eighty degrees. The Bill requires employers to provide one quart of water per hour per employee; ten minutes in the shade for each two hours of work for outdoor employees, and ten minutes in a “cooler breakroom” for indoor employees. That “cooler breakroom” would be required to maintain a temperature of between 75 and 80.5 degrees when the outdoor temperature exceeds 85 degrees. Employers would be required to maintain a “Workplace Heat Stress Plan”, and to ensure that shade is available when the temperature does not exceed 80 degrees.
Personal Protective Equipment (PPE) is also required to include, without limitation: fans, ice vests, sunscreen, and hats. This is dually intended to minimize the likelihood of worker compensation lawsuits, which are already overbearing New York Courts. Electronic PPE material may also soon be included, given that time permits.
The Bill provides similar modes of protection during periods of cold weather, defined as temperatures of less than 60 degrees, including access to hydration, preventative breaks of ten minutes per two outdoor work hours, and access to areas with adequate warmth. Employers are required to provide Personal Protective Equipment for cold weather, to include gloves, hats and winter coats. The Bill also requires that vehicles be equipped with heating and air conditioning if employees are to be in the vehicle for periods in excess of one hour.
The Bill also provides whistleblower protection to ensure protection from retaliatory action.
The legislation, if passed and signed into law, would grant regulatory authority to the New York Department of Labor, which would be required to maintain outreach campaigns, and maintain data required of employers, and to establish a worker hotline as well as an online form where workers could file complaints.
Employers would be subject to fines of not less than fifty dollars per day for not creating a Plan, and up to $10,000 for not following that Plan.
The Assembly Bill is largely similar.
Various groups can be expected to form pro and anti-legislation coalitions; the competing arguments are likely to be fierce and vociferous. Examples might include statements that rising temperatures as a result of climate change regularly endanger both interior and exterior workers; that workers should not have to risk heat exhaustion or even heat stroke while working outside on a hot day; and that employers are in a position to be required to provide protection to employees.
Arguments in opposition might be that New York already has higher than average construction costs, due to legislation such as Labor Law 240(1), which protects construction workers exposed to elevated-related risks; that the costs of compliance will simply be passed on to the consumer; eventual owner of a building, or home; and that the definition of “employer” – any Individual, Partnership, Association, Corporation, Limited Liability Company, Business Truest, Legal Representative, Public Entity, or any Organized Group acting as employer – is overly expansive, to include even the smallest companies. It doesn’t come as a surprise, therefore, that New York also has some of the highest construction accident lawsuits in the country. In 2022, the highest verdict for a construction accident in New York was for $48 Million Dollars, won by The Platta Law Firm.
Both legislative chambers are under one-party control, such that passage of the Bills would appear likely if the concept receives support. The New York Legislature is typically in session for six months, from January through late June. The Bills are currently in Committee; it remains to be seen whether the legislation will be passed and signed by Governor Kathy Hochul.
