STATE OF NEW YORK ________________________________________________________________________ 1604--F 2023-2024 Regular Sessions IN SENATE January 13, 2023 ___________ Introduced by Sens. RAMOS, BRISPORT, BROUK, CHU, CLEARE, COMRIE, FERNAN- DEZ, GIANARIS, GONZALEZ, HARCKHAM, JACKSON, MAY, MAYER, PARKER, RIVERA, SALAZAR, SCARCELLA-SPANTON, SERRANO, STAVISKY, WEBB -- read twice and ordered printed, and when printed to be committed to the Committee on Labor -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- reported favorably from said committee and committed to the Committee on Finance -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the labor law, in relation to regulating the temperature of all indoor and outdoor worksites The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as the "temper- 2 ature extreme mitigation program (TEMP) act". 3 § 2. Legislative findings and intent. The legislature hereby finds and 4 declares that New Yorkers, working both in outdoor and indoor sites, are 5 exposed to extreme temperatures due to climate change. This involves 6 skyrocketing heat in the summer. Every year, New York city has high 7 numbers of heat-related emergency department visits, hospital admis- 8 sions, and deaths. According to the New York City Office of the Mayor, 9 each year there are an estimated 450 heat-related ED visits, 150 heat- 10 related hospital admissions, 10 heat-stroke deaths, and 350 heat-exacer- 11 bated deaths, caused by heat worsening existing chronic conditions. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD04582-26-4S. 1604--F 2 1 The legislature hereby finds and declares that the government is obli- 2 gated to ensure that employers provide safe conditions for their employ- 3 ees. 4 § 3. The labor law is amended by adding a new article 20-D to read as 5 follows: 6 ARTICLE 20-D 7 TEMPERATURE REGULATION BY EMPLOYERS 8 Section 742. Scope. 9 743. Definitions. 10 744. Heat protection standards. 11 745. Education and training. 12 746. Enforcement. 13 § 742. Scope. 1. The following covered industries will be held to the 14 standards in this article: 15 (a) Agriculture; 16 (b) Construction, unless the employer is party to a: (i) collective 17 bargaining agreement or (ii) project labor agreement with a bona fide 18 building and construction trades council; 19 (c) Landscaping; 20 (d) Car wash service; 21 (e) Commercial shipping; 22 (f) Food service; and 23 (g) Warehousing. 24 2. For the purposes of this article, outdoor worksites of the covered 25 industries in paragraphs (a), (b), (c), and (d) of subdivision one of 26 this section shall be subject to the provisions herein. For the purposes 27 of this article, indoor worksites of the covered industries in para- 28 graphs (e), (f), and (g) of subdivision one of this section shall be 29 subject to the provisions herein. 30 § 743. Definitions. For the purposes of this article, the following 31 terms shall have the following meanings: 32 1. "Employee" means any person within a covered industry providing 33 labor or services within the scope of this article for remuneration for 34 a public or private entity or business within the state, without regard 35 to an individual's immigration status, and shall include, but not be 36 limited to, part-time workers, independent contractors, day laborers, 37 farmworkers and other temporary and seasonal workers working in an 38 industry identified in this article. The term shall also include indi- 39 viduals working for staffing agencies, contractors or subcontractors on 40 behalf of the employer at any individual worksite, as well as any 41 individual delivering goods or transporting people at, to or from the 42 worksite on behalf of the employer, regardless of whether delivery or 43 transport is conducted by an individual or entity that would otherwise 44 be deemed an employer under this article, or any person holding a posi- 45 tion by appointment or employment in the service of a public employer 46 within the scope of this article. 47 2. "Employer" means any individual, partnership, association, corpo- 48 ration, limited liability company, business trust, legal representative, 49 public entity, or any organized group acting as employer within a 50 covered industry identified in this article. 51 3. "Indoor worksite" means any enclosed work vehicles and any space 52 between a floor and a ceiling bound on all sides by walls. A wall 53 includes any door, window, retractable divider, garage door, or other 54 physical barriers that is temporary or permanent, whether open or 55 closed.S. 1604--F 3 1 4. "Outdoor worksite" means all employers with employees performing 2 work in an outdoor environment. The term outdoor worksite does not apply 3 to incidental exposure, which exists when an employee is required to 4 perform a work activity outdoors for not longer than fifteen minutes in 5 any sixty-minute period. 6 5. "Heat stress threshold" means a heat stress threshold of eighty or 7 more degrees Fahrenheit. For the purposes of indoor temperature regu- 8 lated environments, the indoor temperature shall fall between sixty- 9 eight and seventy-five degrees Fahrenheit, to the extent practicable. 10 6. "Heat illness" means a serious medical condition resulting from the 11 body's inability to cope with extreme heat temperature stress thresh- 12 olds, and includes, but is not limited to, heat cramps, heat exhaustion, 13 heat syncope, and heat stroke. 14 7. "Personal protective equipment" or "PPE" means the necessary 15 protective equipment, gear, and uniforms to withstand extreme heat at or 16 exceeding the heat stress thresholds. 17 § 744. Heat protection standards. The employer shall fulfill the 18 following requirements when employees are in an outdoor or indoor work- 19 site and experiencing conditions at or exceeding a heat stress thresh- 20 old: 21 1. Access to hydration. The employer shall provide access to potable 22 drinking water at no cost to the employee. The water shall be located 23 as close as practicable to the areas where employees are working. Water 24 shall be provided at the beginning of the work shift to provide one 25 quart per employee per hour for drinking for the entire shift; provided, 26 however, that an employer may begin the shift with smaller quantities of 27 water where such employer has effective procedures for replenishment 28 during the shift as needed to allow employees to drink one quart or more 29 per hour. 30 2. Medical monitoring. Employers shall closely monitor temperatures 31 and implement their workplace heat stress plan. If an employee exhibits 32 signs or reports symptoms of heat illness while taking a preventative 33 break pursuant to subdivision four of this section, or at any other 34 time, the employer shall make a reasonable effort to provide the worker 35 with access to first aid or other treatment. 36 3. Access to shade. (a) With respect to outdoor sites, shade shall be 37 made available while employees are present when the temperature exceeds 38 eighty degrees Fahrenheit and shall be as close to the worksite as 39 reasonably possible. When the outdoor temperature in the work area 40 exceeds eighty degrees Fahrenheit, the employer shall have and maintain 41 one or more areas with shade at all times while employees are present 42 that are either open to the air or provided with ventilation or cooling. 43 The amount of shade present shall be at least enough to accommodate the 44 number of employees on preventative breaks, so that they can sit in a 45 normal posture fully in the shade with at least four square feet per 46 resting employee. 47 (b) Where the employer can demonstrate that it is infeasible or unsafe 48 to have a shade structure, or otherwise to have shade present on a 49 continuous basis, the employer may utilize alternative procedures for 50 providing access to shade if the alternative procedures provide equiv- 51 alent protection. 52 4. Preventative breaks. (a) Employees shall be allowed and encouraged 53 to take paid preventative breaks when they feel the onset of heat 54 illness. Employees shall notify their employer as soon as possible about 55 such onset and a preventative break shall be offered to such employees.S. 1604--F 4 1 Such preventative break may include access to shade. An individual 2 employee who takes a preventative break: 3 (i) Shall be monitored and asked if they are experiencing symptoms of 4 heat illness; 5 (ii) Shall be encouraged to remain in the shade, where applicable 6 under subdivision three of this section; and 7 (iii) Shall not be ordered back to work until any signs or symptoms of 8 heat illness have abated, but in no event, less than five minutes in 9 addition to the time needed to access shade where applicable. 10 (b) With respect to outdoor sites, where the temperature reaches or 11 exceeds ninety-five degrees Fahrenheit, the employer shall allow and 12 encourage employees to take a minimum ten minute preventative cool-down 13 rest period every two hours. 14 5. Personal protective equipment. Employers shall provide the neces- 15 sary protective equipment, gear, and uniforms to withstand temperatures 16 at or exceeding the heat stress thresholds to the extent practicable. 17 This may include, but is not limited to: 18 (a) Fans, if possible; 19 (b) Air-conditioning, which shall be mandated in all delivery vehicles 20 and warehouses in an industry identified in this article; and 21 (c) Anything additional deemed necessary by the department to combat 22 extreme heat. 23 6. Vehicle standards. Employees who spend more than sixty minutes in 24 workplace or employer provided vehicles each day or whose worksite is 25 considered an employer provided vehicle shall have adequate air-condi- 26 tioning available inside such vehicle, provided however that agricul- 27 tural machinery including tractors, seeders, and harvesting equipment 28 shall be exempt from this provision unless otherwise determined by the 29 commissioner. 30 § 745. Education and training. 1. Training. The department shall 31 create a training curriculum outlining the signs of heat illness and the 32 available medical responses. Such training shall be administered by the 33 employer at time of hiring or the employee's training fund if a member 34 of organized labor. 35 2. Mandated signage and materials. The department shall promulgate 36 signage and educational materials that are required to be made available 37 to employees by their employer in the twelve most common languages 38 spoken in the state regarding the following: 39 (a) Signs of heat illness; 40 (b) Heat stress thresholds; 41 (c) Employer required protections from heat stress thresholds; 42 (d) Where employees can report an employer's lack of accommodation; 43 and 44 (e) Anything else deemed necessary by the department. 45 3. Unlawful retaliation. For the purposes of this article, there 46 shall be a rebuttable presumption of unlawful retaliation if an employer 47 in any manner discriminates, retaliates, or takes any adverse action 48 against any employee within ninety days of the employee initiating a 49 complaint pursuant to this article. 50 4. Outreach campaign. The department shall establish a statewide 51 outreach campaign to educate employees on the heat illness standards 52 established and ensure that employers are providing access to proper 53 signage and materials. 54 § 746. Enforcement. The department shall promulgate rules and regu- 55 lations to require the following:S. 1604--F 5 1 1. Every employer in a covered industry shall establish, maintain, and 2 preserve for three years contemporaneous, true, and accurate records on 3 all heat-related illnesses and fatalities which occur at an outdoor or 4 indoor worksite to ensure compliance with commissioner requests for 5 data. 6 2. Every employer in a covered industry shall develop a written plan 7 on how heat-related stress will be mitigated. An employer shall provide 8 such plan to all employees and applicable labor organizations on an 9 annual basis. 10 3. Every employer in a covered industry shall be required to pay 11 penalties of no less than fifty dollars per day for failing to implement 12 heat protection standards as set forth in this article. The department 13 shall administer notice and collect all fines. 14 4. The department shall establish a worker hotline and an online form 15 where employees can file complaints with the department regarding heat 16 protection standards. 17 5. Any other reporting or enforcement protocols necessary to ensure 18 the protection of workers. 19 § 4. This act shall take effect on the ninetieth day after it shall 20 have become a law. Effective immediately, the addition, amendment and/or 21 repeal of any rule or regulation necessary for the implementation of 22 this act on its effective date are authorized to be made and completed 23 on or before such effective date.