Article contributed by Caitlin Breen, Ellenoff Grossman & Schole LLP
The use of e-bikes in the hospitality industry continues to rise, with delivery workers routinely utilizing e-bikes to make food deliveries across New York City.
Major concerns have arisen due to the dangers caused by the lithium-ion batteries that power these e-bikes.
Recently, New York City has been plagued with a dramatic increase in fires caused by these lithium-ion batteries leading to loss of homes, loss of businesses, injuries, and fatalities.
There have been hundreds of fires in New York City caused by these lithium-ion batteries with more and more occurring each year. The FDNY cautions that these lithium-ion batteries can rapidly overheat and ignite with no real warning.
As a result of this significant increase in fires caused by lithium-ion batteries, there has been a public push to hold employers and third-party delivery platforms liable for e-bike safety, as opposed to the onus being on the delivery worker to bear the responsibility of maintaining the safety of their e-bike.
For example, there is a bill pending before the New York City Council that would mandate that food delivery companies provide safety-compliant e-bikes at the company’s expense, making safety compliance the responsibility of the company.
This bill is particularly focused on third-party delivery platforms such as GrubHub, DoorDash, and Uber Eats. The bill may gain traction going forward because there are already things in motion at the state and city level addressing the issues surrounding the use of e-bikes.
Specifically, New York State and New York City have begun issuing additional regulations surrounding e-bike sale, use, and safety. Politicians have signaled that legislative efforts have only just begun.
On July 11, 2024, Governor Hochul signed a new set of laws addressing the safety issues for e-bikes and lithium-ion batteries.
This set of laws imposes new safety regulations onto retailers of e-bikes, creates a multi-agency coalition to develop additional safety protocols regarding safe e-bike use, and prohibits the sale of lithium-ion batteries that fail to comply with particular standards.
Separately, on July 22, 2024, Mayor Adams announced a $2 million program that will permit trade-ins of unsafe e-bikes and lithium batteries, allow property owners to apply for installations of sidewalk charging cabinets for these devices, and provide comprehensive FDNY safety education.
There is also an existing New York City regulation, that became effective in September 2023, that prevents persons from distributing, leasing, renting, or offering to sell e-bikes and related devices if they do not comply with certain safety standards.
The reality is that the use of e-bikes disproportionately affects workers in the hospitality industry. Given the overwhelming presence of these e-bikes in the industry, it is crucial that restaurant owners understand the changing regulations and safety precautions they should take to protect their establishment and their workers.
If you are currently leasing e-bikes to your employees, local regulations may already apply to you.
Practically speaking, owners should check with their insurance policies to make certain that fires related to e-bikes are not excluded from coverage. Further, while city and state regulations work to get rid of unsafe lithium-ion batteries, owners of hospitality establishments should avoid storing e-bikes inside their premises.
In particular, the FDNY warns of some activities that increase your risk of fire with regards to these lithium-ion batteries, such as:
- (i) failing to use the original battery, power adapter, or power cord to charge the device
- (ii) not plugging the device directly into a wall outlet to charge
- (iii) allowing for devices to be charged unattended
- (iv) charging an e-bike in a location that would prevent escape
- (v) charging an e-bike overnight
- (vi) charging an e-bike near combustible materials.
Following this FDNY guidance is crucial to protect your restaurant from a devastating fire.
From a legal-liability perspective, perhaps it is time to re-visit the question of whether it is in your benefit to outsource delivery work to third-party platforms as opposed to employing your own delivery workers.
Over the years, restaurants have increasingly moved to third-party platforms based on a variety of wage and hour concerns, such as compliance with the 80/20 rule under New York law, and more recently the 80/20/30 rule under federal law.
The issue of e-bike safety compliance and cost may soon become another motivation for restaurants to move to these third-party platforms.
Restaurants should work with employment counsel to make sure that they are complying with the changing regulations surrounding e-bikes, address risk exposure for employing workers using e-bikes for deliveries, and confirm that they are taking all steps to maintain the safety of their establishment and their workers.
Caitlin Breen is an Associate in the Labor & Employment Group at Ellenoff Grossman & Schole LLP. Her practice spans a broad range of employment matters throughout all phases of litigation, including wage and hour matters, employment discrimination, retaliation, and other employment related claims.
Ms. Breen assists clients with employment issues, including drafting workplace policies and handbooks and advising regarding compliance with federal and state employment laws.
In addition to her practice, Ms. Breen serves as an adjunct professor at Cardozo School of Law where she teaches a course on lawyering and legal writing. Ms. Breen can be reached at (212) 370-1300 or cbreen@egsllp.com.
