A NEW NYS Public Employer Emergency Planning Requirement

On Labor Day, NYS Governor Cuomo signed a bill requiring public employers to develop a very specific emergency plan for future public health emergencies. This may include a continuation of the Coronavirus pandemic, or another emergency. Some details and guidance below…

WHO

The requirement applies to public employers, including:

  • State, county, and local governments
  • Public authorities (bridge, water, airport, etc.)
  • Commissions
  • Public corporations
  • Agencies
  • School districts
    • It’s important to note that the requirement for school districts has also been codified into state education law through this bill, to be included in school safety plans.

WHAT

The new law requires these plans to include the following:

  • A list and description of positions and titles considered essential
    • Note that the definition of ‘essential’ in the bill means employees who must work on site.
  • Protocols which will enable non-essential employees to work remotely
  • A description of how work shifts can be staggered to reduce overcrowding on public transportation and in the workplace
  • Protocols for procuring, storing, and distributing PPE
  • Protocols to prevent the spread of disease if an employee is exposed, symptomatic, or tests positive for the disease in question
  • Protocols for documenting hours and work locations of all employees for contract tracing
  • Protocols for coordinating with applicable government entities for emergency housing for employees, if needed

WHEN

Though there were no timeframes included in the bill itself, the Governor’s website provided two benchmarks of time. It states that plans are to be submitted to unions and labor management committees within 150 days, and all plans must be finalized by April 1, 2021.

The 150-day timeframe is obviously a bit confusing, as it doesn’t give a start date (i.e. 150 days from when?). I’ve sent inquiries to the Governor’s office, as well as my State Assemblyman and State Senator for clarification. Once I have an answer, I’ll provide it as a comment to this post. I will note that if the 150 day clock started on Labor Day, that alarm will go off on Friday February 4, 2021.

Once finalized, the plan must be included in any existing employee handbook and made otherwise available to employees. In terms of any kind of oversight or audit, there is no provision for such identified in the legislation. Aside from the requirement for school districts to meet this requirement being appended to state education law, this bill appends state labor law. As such, the NYS Department of Labor would have enforcement oversight, if they chose to or are directed to do so. That said, the bill does direct the NYS Department of Labor to establish procedures to allow for public employees to contact and inform the Department of any alleged or believed violations of the provisions of the law. Further, they are directed to establish a webpage and hotline to facilitate such.

HOW

Unfortunately, no existing planning requirement or standard will meet this requirement. While there are elements of continuity of operations planning in this, the focus is shifted and hits some very specific elements which are likely not included in many continuity of operations plans. That said, a new plan needs to be developed to meet this requirement. These elements certainly can be appended into a continuity of operations plan, but it’s important to note that these provisions are intended for future public health emergencies (not that some couldn’t be used for other hazards), and that, should any kind of audit occur, for those purposes it’s usually better to meet requirements through stand-alone documents.

As most public employees are members of labor organizations (unions), and the bill itself was endorsed by the AFL-CIO, there is a requirement for employers to submit the plans to unions and labor management committees for review. These entities have an option to provide comment, to which the employer is required to provide written responses prior to finalizing the plan.

There is some thought and coordination required to make this an effective and meaningful plan which also meets the legal requirements. Detail will need to be developed, specific to each public employer and their circumstances, for the protocols required in the plan. When developing procedure and protocol, be sure to:

  1. identify specifically what needs to be done,
  2. who the action agents are,
  3. what the ideal end state is,
  4. the timeframe in which it should be accomplished, and
  5. who has decision-making authority over those actions

Of course, in developing the plan, the best guidance I can give is to follow the planning process identified in FEMA’s CPG 101. Lastly, be sure to consider that the specific actions we have taken in response to the Coronavirus pandemic may not be the actions we take for another disease. Plans must maintain this flexibility.

NEED HELP?

Recognizing the challenges associated with developing this plan for small and large entities alike, my company – Emergency Preparedness Solutions (EPS) – has developed a template to support these planning requirements. We are making this template free for use by NYS public employers. I continue to have concerns with templates, cautioning against people simply ‘pencil whipping’ the document, but the developed template includes a lot of guidance and identifies content areas which need to be specifically developed by the public employer, so if the planning process is properly followed, I don’t expect that will be a problem with this template.

A BIT OF AN AD

Further, if jurisdictions want assistance in developing these plans, EPS is available to assist (contractually, of course). We’ve spent a lot of time reviewing these new requirements since they were signed and we’re already slated to discuss these in some webinars for specific public employer groups in New York State. Knowing that some small jurisdictions may be in a bit of a bind to meet this requirement, we are offering our services relative to this plan at not cost for the first 10 NYS public employers which employ between 1 and 10 full time employees if we have an executed contract by November 30th of this year – so be sure to contact us soon!

© 2020 Timothy Riecker, CEDP

Emergency Preparedness Solutions, LLC®

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