Bill Text: NY S05081 | 2023-2024 | General Assembly | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Establishes the warehouse worker injury reduction program; requires employers to establish an injury reduction program designed to identify and minimize the risks of musculoskeletal injuries and disorders among workers involved in performing manual materials handling tasks.

Spectrum: Partisan Bill (Democrat 20-0)

Status: (Engrossed) 2024-06-07 - returned to senate [S05081 Detail]

Download: New_York-2023-S05081-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         5081--A

                               2023-2024 Regular Sessions

                    IN SENATE

                                    February 22, 2023
                                       ___________

        Introduced  by  Sens.  RAMOS,  HOYLMAN-SIGAL,  SKOUFIS -- 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

        AN ACT to amend the labor law, in relation to establishing the warehouse
          worker injury reduction program

          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 "warehouse
     2  worker injury reduction program".
     3    § 2. Legislative findings. The legislature finds and declares that:
     4    (a) Workplace injuries can take a  terrible  toll  on  workers,  their
     5  families  and  their  communities,  and can create substantial costs for
     6  employers. According to the most recent  data  (2020)  released  by  the
     7  Bureau of Labor Statistics, the warehouse industry itself reports a rate
     8  of  serious work-related injuries involving lost time or restricted duty
     9  (4.0 cases/100 full-time workers) that is more than  twice  the  average
    10  injury rates for all private industry (1.7 cases/100 full-time workers).
    11  The most common types of work-related serious injury reported by employ-
    12  ers  in  the  warehouse sector are musculoskeletal injuries, which often
    13  require workers to miss work and can force workers  permanently  out  of
    14  the job and even out of the workforce.
    15    (b)  Warehouse  companies  often require workers to perform fast paced
    16  manual material handling tasks. These involve  well-known  risk  factors
    17  for  serious  injury  such  as rapid pace, repetitive forceful exertions
    18  like lifting heavy packages, and awkward postures like twisting/bending,
    19  and combinations thereof that are likely to cause musculoskeletal  inju-
    20  ries.  Scientific evidence shows that effective ergonomic interventions,
    21  such  as  reducing the pace, package weights and stressful postures, can
    22  lower the incidence and severity of work-related  musculoskeletal  inju-
    23  ries.  The research is clear that the most effective method for reducing

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08912-02-3
        S. 5081--A                          2

     1  or eliminating these risk factors is to implement an ergonomics  program
     2  that  includes well-informed analysis of the worksite, implementation of
     3  solutions to reduce the dangerous risk factors, professionally competent
     4  medical  management,  effective worker training, and meaningful involve-
     5  ment by workers and their representatives in all aspects of the program.
     6    § 3. Section 780 of the labor law is amended by adding two new  subdi-
     7  visions 8 and 9 to read as follows:
     8    8.  "Musculoskeletal  injuries and disorders" means work related inju-
     9  ries, or disorders, of the muscles, nerves, tendons, ligaments,  joints,
    10  cartilage  of  the upper and lower limbs, neck and lower back (including
    11  spinal discs) that: (a) are  caused  by  sudden  or  sustained  physical
    12  exertion;  or  (b)  are not the result of any instantaneous non-exertion
    13  event, such as slips, trips, or falls.
    14    9. "Qualified ergonomist" means an ergonomist who is  able  to  demon-
    15  strate  proficiency  in the core, minimum competencies of ergonomics and
    16  injury prevention, as defined by the commissioner. Until the commission-
    17  er defines such competencies and approves ergonomists in accordance with
    18  such competencies, consultants approved by  the  commissioner  under  12
    19  NYCRR  59 and 60 with a credential as a certified safety professional or
    20  certified industrial hygienist shall be deemed to qualify as an ergonom-
    21  ist.
    22     § 4. Section 786 of the labor law is amended by adding a new subdivi-
    23  sion 3 to read as follows:
    24    3. Making a complaint related to section seven hundred eighty-nine  of
    25  this article.
    26    §  5.  The labor law is amended by adding a new section 789 to read as
    27  follows:
    28    § 789. Injury reduction program. 1. Every  employer  subject  to  this
    29  section  shall  establish  and  implement  an  injury  reduction program
    30  designed to identify and minimize the risks of musculoskeletal  injuries
    31  and  disorders  among  workers  involved  in performing manual materials
    32  handling tasks. The program shall include: worksite evaluation;  control
    33  of exposures, including pace, which have caused or have the potential to
    34  cause musculoskeletal injuries and disorders; employee training; on-site
    35  medical and first aid practices; and employee involvement.
    36    2.  The  employer shall ensure that each job, process, or operation of
    37  work activity covered by this section or a representative number of such
    38  jobs, processes, or operations of identical work activities shall have a
    39  written work site evaluation by a qualified ergonomist for risk  factors
    40  which  have  or  are likely to cause musculoskeletal injuries and disor-
    41  ders. Such risk factors shall include, but are  not  limited  to,  rapid
    42  pace,  forceful  exertions,  repetitive  motions, twisting, bending, and
    43  awkward postures and combinations thereof that had caused or are  likely
    44  to cause musculoskeletal injuries and disorders.
    45    (a)  Any worksite evaluations shall also determine whether any employ-
    46  ees exposed to such risk factors are subject to either personnel  action
    47  with  the potential for adverse action, or adverse action or termination
    48  themselves, arising in whole or in part from an employer's use of quotas
    49  to determine employee assignments.
    50    (b) All such worksite evaluations shall  obtain  recommendations  from
    51  workers  who  regularly  perform those jobs on the possible risk factors
    52  and any workplace changes that can reduce such risk factors.
    53    (c) Copies of such worksite risk  factor  evaluations  shall  be  made
    54  available to workers and their representatives upon request, at no cost,
    55  within  one  business  day of such request.  Workers and their represen-
    56  tatives shall be notified in writing of  the  results  of  the  worksite
        S. 5081--A                          3

     1  evaluation.  Employers  shall  maintain accessible copies of such evalu-
     2  ations at locations within the warehouse  and  shall  make  such  copies
     3  readily available to workers.
     4    (d)  An  initial  worksite  evaluation shall be conducted within three
     5  months after the effective date of this  article.  Worksite  evaluations
     6  shall be reviewed and updated at least annually thereafter. A new analy-
     7  sis of risk factors shall be conducted in accordance with the provisions
     8  of subdivision one of this section whenever a new job, process, or oper-
     9  ation is introduced which could increase the risk factors for musculosk-
    10  eletal  injuries  and  disorders.   Such new analysis shall be conducted
    11  within thirty days of the creation or change of a job, process or opera-
    12  tion.
    13    (e) Within three months of the effective date  of  this  article,  the
    14  commissioner  shall  form  a task force chaired by a recognized academic
    15  leader in the field of ergonomics in New York state and  including,  but
    16  not  limited  to,  representatives  from  the warehouse workforce, labor
    17  organizations active in the warehousing industry, and employers  in  the
    18  industry,  to  recommend  the core competencies required for the certif-
    19  ication of qualified ergonomists.  Within six months  of  the  effective
    20  date  of this article, the commissioner shall adopt a standard and proc-
    21  ess for certifying qualified ergonomists based on the recommendations of
    22  the task force.
    23    3. The employer shall correct in a  timely  manner  any  risk  factors
    24  identified  as  having  caused  or being likely to cause musculoskeletal
    25  injuries and disorders. For any  corrections  which  require  more  than
    26  thirty  days  to  complete,  the  employer  shall revise, as needed, and
    27  provide a schedule for such proposed corrections. Such schedule shall be
    28  included in the evaluations provided  to  workers  and  their  represen-
    29  tatives.
    30    (a)  Where  the  employer  demonstrates that it is unable to eliminate
    31  identified risk factors, the employer shall minimize  the  exposures  to
    32  the extent feasible.
    33    (b) In reducing risk factors, the employer shall consider:
    34    (i)  engineering  controls  and  redesigning  work  stations to change
    35  shelving heights, provide adjustable fixtures or tool redesign; and
    36    (ii) administrative controls, such as job rotation which  reduces  the
    37  exposure to risk factors, reduced work pacing or additional work breaks.
    38    (c)  Employers  shall  maintain records of steps taken to eliminate or
    39  reduce risk factors and shall make copies available to workers and their
    40  representatives upon request.
    41    4.  All  employers  covered  by  this  section  shall  provide  injury
    42  reduction  training to all employees involved in performing manual mate-
    43  rials handling jobs and tasks at the warehouse during normal work  hours
    44  and  without suffering a loss of pay. Such training shall be provided in
    45  a language and vocabulary that  the  workers  understand  and  shall  be
    46  repeated  annually.  The training shall also be provided to the workers'
    47  supervisors. Such training shall be in addition to the training required
    48  under section twenty-seven-d of this chapter and shall include:
    49    (a) The early symptoms of musculoskeletal injuries and  disorders  and
    50  the importance of early detection;
    51    (b)  Musculoskeletal injury and disorder risk factors and exposures at
    52  work, including the hazards posed by excessive rates of work;
    53    (c) Methods to reduce risk factors for  musculoskeletal  injuries  and
    54  disorders,   including  both  engineering  controls  and  administrative
    55  controls, such as limitations on work pace and increased  scheduled  and
    56  unscheduled breaks;
        S. 5081--A                          4

     1    (d)  The employer's program to identify risk factors as required under
     2  this section and prevent musculoskeletal injuries and disorders, includ-
     3  ing the summary protocols for medical treatment approved by the  employ-
     4  er's medical consultant;
     5    (e) The rights and function of workplace safety committees established
     6  under section twenty-seven-d of this chapter and the rights of employees
     7  to report any risk factors, other hazards, injuries or health and safety
     8  concerns; and
     9    (f)  Training  on  the  unlawful  retaliation of any provision in this
    10  section, including the disciplinary actions required when supervisors or
    11  managers violate the law or policy, as well  as  the  employer's  policy
    12  prohibiting any workplace discrimination.
    13    5.  Any  on-site medical office or first aid station that sees workers
    14  in warehouses covered by this section with symptoms  of  musculoskeletal
    15  injuries and disorders shall be staffed with medical professionals oper-
    16  ating  within  their  legal scope of practice.   Nothing in this section
    17  shall infringe on the rights of workers under the opening  paragraph  of
    18  subdivision  (a) of section thirteen of the workers' compensation law to
    19  either select an authorized physician  to  treat  employees  and  render
    20  medical  care  or  to select the continuance of any medical treatment or
    21  care by an authorized physician selected by the employee.  All  examina-
    22  tions  and  treatments  by any medical personnel employed or selected by
    23  the employer under section seven  hundred  eighty-one  of  this  article
    24  shall  be performed for the purposes of the injury reduction program and
    25  shall not interfere with the rights of employees to receive any  medical
    26  treatment or any other benefits under the workers' compensation law.
    27    (a) Employers shall ensure that staffing and the practice of any first
    28  aid  or  medical  station  meets state requirements for physician super-
    29  vision of nurses, emergency medical technicians or  other  non-physician
    30  personnel.
    31    (b)  In all warehouses with on-site medical or first aid providers for
    32  the treatment of musculoskeletal injuries and  disorders,  the  employer
    33  shall  consult  with  a  medical  consultant who is licensed by New York
    34  state and board certified in occupational medicine.
    35    (i) The employer shall obtain from the medical  consultant  a  written
    36  evaluation  of  the  on-site  medical  or first aid provider program and
    37  protocols followed in the warehouse for identification and treatment  of
    38  musculoskeletal injuries and disorders and shall include recommendations
    39  to  ensure  compliance  with  accepted medical practice of the staffing,
    40  supervision and documentation of medical treatment protocols.
    41    (ii) The employer shall obtain from the medical consultant  a  summary
    42  of treatment protocols suitable for worker patients covering all aspects
    43  of  the on-site medical and first aid practices, from early detection of
    44  musculoskeletal injuries and disorders through evaluation by a qualified
    45  physician and physician provision of appropriate  work  restrictions  in
    46  languages understood by the employees.
    47    (iii)  The  employer  shall ensure that the medical consultant reviews
    48  the previous medical consultant evaluation, related materials and proto-
    49  cols on an annual basis, and recommends changes as appropriate.
    50    (iv) The employer shall ensure that all designated medical  and  first
    51  aid  providers have observed, in person, the jobs involving manual mate-
    52  rials handling within the warehouse and all risk factors  identified  in
    53  the evaluation conducted under the medical consultant evaluation.
    54    (c) There shall be no delays in the provision of adequate medical care
    55  to workers who report injuries to the on-site medical services.
        S. 5081--A                          5

     1    (d)  Each  employer  shall  ensure  that  no supervisory or managerial
     2  employee  or  other  person  discriminates  or  retaliates  against  any
     3  current, former, or prospective employee or other person for reporting a
     4  work-related injury or illness, or health and safety concern.
     5    6.  Employers  shall ensure that employees and their designated repre-
     6  sentatives are consulted both before  and  during  the  development  and
     7  implementation  of  all  aspects  of  the  program. Where employees have
     8  established a workplace safety  committee  in  compliance  with  section
     9  twenty-seven-d  of  this  chapter,  the  employer  shall ensure that the
    10  committee is consulted regarding the development and  implementation  of
    11  all  aspects  of the injury reduction program. Any record created by the
    12  employer according to this section shall be provided  to  the  workplace
    13  safety  committee  prior  to  consultation.  All  documents  provided to
    14  employees shall be provided in writing in English and  in  the  language
    15  identified by each employee as the primary language of such employee.
    16    § 6. Severability. If any provision of this act, or any application of
    17  any  provision of this act, is held to be invalid, that shall not affect
    18  the validity or effectiveness of any other provision of this act, or  of
    19  any  other  application of any provision of this act, which can be given
    20  effect without that provision or  application;  and  to  that  end,  the
    21  provisions and applications of this act are severable.
    22    §  7.  This  act  shall take effect on the sixtieth day after it shall
    23  have become a law; provided, however, that if chapter 722 of the laws of
    24  2022 shall not have taken effect on or before such  date  then  sections
    25  three and four of this act shall take effect on the same date and in the
    26  same manner as such chapter of the laws of 2022 takes effect.