Bill Text: NY S05081 | 2023-2024 | General Assembly | Amended
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
STATE OF NEW YORK ________________________________________________________________________ 5081--C 2023-2024 Regular Sessions IN SENATE February 22, 2023 ___________ Introduced by Sens. RAMOS, ADDABBO, BRESLIN, BRISPORT, CHU, COMRIE, FERNANDEZ, GONZALEZ, HOYLMAN-SIGAL, JACKSON, MANNION, MAY, PARKER, RIVERA, SALAZAR, SCARCELLA-SPANTON, SERRANO, SKOUFIS, 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 -- recommitted to the Committee on Labor in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- reported favorably from said commit- tee 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 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 recent data (2022) released by the bureau of 7 labor statistics, the warehouse industry in New York state reports a 8 rate of the most serious work-related injuries involving lost time or 9 restricted duty (7.8 cases/100 full-time workers) that is more than five 10 times the average rates of these types of injuries for all private 11 industry in New York state (1.5 cases/100 full-time workers). In 2022 12 alone, there were 5,472 workers injured in the warehousing industry in 13 New York state. The most common types of work-related serious injury 14 reported by employers in the warehouse sector are musculoskeletal inju- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD08912-06-4S. 5081--C 2 1 ries, which often require workers to miss work and can force workers 2 permanently out of the job and even out of the workforce. 3 (b) The amount and severity of injuries in New York's warehouses is 4 having a direct impact on public health and safety. Each year, thousands 5 of injured warehouse workers return to their communities with chronic 6 back, neck, shoulder and wrist pain that is often remedied by opiates. 7 This feeds into the opiate epidemic that is at crisis levels in our 8 state. 9 (c) Many communities in New York are underserved by full-service 10 supermarkets and other essential stores and lack access to transporta- 11 tion to buy these essential supplies. Online retail may be their only 12 source of basic necessities, including medical supplies and food. The 13 high rate of injuries at warehouses could lead to service disruptions, 14 jeopardizing the health and safety of our communities. In fact, accord- 15 ing to an internal Amazon memo leaked to the press in 2021, Amazon has 16 concerns that given the injury rates in the industry, it will deplete 17 the available warehouse labor supply in its U.S. network by 2024. This 18 could impact the entire warehouse and distribution network, impacting 19 the public health of our communities. 20 § 3. Section 780 of the labor law is amended by adding two new subdi- 21 visions 8 and 9 to read as follows: 22 8. "Musculoskeletal injuries and disorders" means work related inju- 23 ries, or disorders, of the muscles, nerves, tendons, ligaments, joints, 24 cartilage of the upper and lower limbs, neck and lower back (including 25 spinal discs) that: (a) are caused by sudden or sustained physical 26 exertion; or (b) are not the result of any instantaneous non-exertion 27 event, such as slips, trips, or falls. 28 9. "Qualified ergonomist" means an ergonomist who is able to demon- 29 strate proficiency in the core, minimum competencies of ergonomics and 30 injury prevention, as defined by the commissioner. Until the commission- 31 er defines such competencies and approves ergonomists in accordance with 32 such competencies, consultants approved by the commissioner under 12 33 NYCRR 59 and 60 with a credential as a certified safety professional or 34 certified industrial hygienist shall be deemed to qualify as an ergonom- 35 ist. 36 § 4. Section 786 of the labor law is amended by adding a new subdivi- 37 sion 3 to read as follows: 38 3. Making a complaint related to section seven hundred eighty-nine of 39 this article. 40 § 5. The labor law is amended by adding a new section 789 to read as 41 follows: 42 § 789. Injury reduction program. 1. Every employer subject to this 43 section shall establish and implement an injury reduction program 44 designed to identify and minimize the risks of musculoskeletal injuries 45 and disorders among workers involved in performing manual materials 46 handling tasks. The program shall include: worksite evaluation; control 47 of exposures, including pace, which have caused or have the potential to 48 cause musculoskeletal injuries and disorders; employee training; on-site 49 medical and first aid practices; and employee involvement. 50 2. The employer shall ensure that each job, process, or operation of 51 work activity covered by this section or a representative number of such 52 jobs, processes, or operations of identical work activities shall have a 53 written work site evaluation by a qualified ergonomist for risk factors 54 which have or are likely to cause musculoskeletal injuries and disor- 55 ders. Such risk factors shall include, but are not limited to, rapid 56 pace, forceful exertions, repetitive motions, twisting, bending, andS. 5081--C 3 1 awkward postures and combinations thereof that had caused or are likely 2 to cause musculoskeletal injuries and disorders. 3 (a) Any worksite evaluations shall also determine whether any employ- 4 ees exposed to such risk factors are subject to either personnel action 5 with the potential for adverse action, or adverse action or termination 6 themselves, arising in whole or in part from an employer's use of quotas 7 to determine employee assignments. 8 (b) All such worksite evaluations shall obtain recommendations from 9 workers who regularly perform those jobs on the possible risk factors 10 and any workplace changes that can reduce such risk factors. 11 (c) Copies of such worksite risk factor evaluations shall be made 12 available to workers and their representatives upon request, at no cost, 13 within one business day of such request. Workers and their represen- 14 tatives shall be notified in writing of the results of the worksite 15 evaluation. Employers shall maintain accessible copies of such evalu- 16 ations at locations within the warehouse and shall make such copies 17 readily available to workers. 18 (d) An initial worksite evaluation shall be conducted. Worksite eval- 19 uations shall be reviewed and updated at least annually. A new analysis 20 of risk factors shall be conducted in accordance with the provisions of 21 subdivision one of this section whenever a new job, process, or opera- 22 tion is introduced which could increase the risk factors for musculosk- 23 eletal injuries and disorders. Such new analysis shall be conducted 24 within thirty days of the creation or change of a job, process or opera- 25 tion. 26 (e) The commissioner shall form a task force chaired by a recognized 27 academic leader in the field of ergonomics in New York state and includ- 28 ing, but not limited to, representatives from the warehouse workforce, 29 labor organizations active in the warehousing industry, and employers in 30 the industry, to recommend the core competencies required for the 31 certification of qualified ergonomists, as well as standardized worksite 32 evaluations and controls. 33 (f) The commissioner shall adopt a standard and process for certifying 34 qualified ergonomists, as well as standardized worksite evaluations and 35 controls, based on the recommendations of the task force. 36 3. The employer shall correct in a timely manner any risk factors 37 identified as having caused or being likely to cause musculoskeletal 38 injuries and disorders. For any corrections which require more than 39 thirty days to complete, the employer shall revise, as needed, and 40 provide a schedule for such proposed corrections. Such schedule shall be 41 included in the evaluations provided to workers and their represen- 42 tatives. 43 (a) Where the employer demonstrates that it is unable to eliminate 44 identified risk factors, the employer shall minimize the exposures to 45 the extent feasible. 46 (b) In reducing risk factors, the employer shall consider: 47 (i) engineering controls and redesigning work stations to change 48 shelving heights, provide adjustable fixtures or tool redesign; and 49 (ii) administrative controls, such as job rotation which reduces the 50 exposure to risk factors, reduced work pacing or additional work breaks. 51 (c) Employers shall maintain records of steps taken to eliminate or 52 reduce risk factors and shall make copies available to workers and their 53 representatives upon request. 54 4. All employers covered by this section shall provide injury 55 reduction training to all employees involved in performing manual mate- 56 rials handling jobs and tasks at the warehouse during normal work hoursS. 5081--C 4 1 and without suffering a loss of pay. Such training shall be provided in 2 a language and vocabulary that the workers understand and shall be 3 repeated annually. The training shall also be provided to the workers' 4 supervisors. Such training shall be in addition to the training required 5 under section twenty-seven-d of this chapter and shall include: 6 (a) The early symptoms of musculoskeletal injuries and disorders and 7 the importance of early detection; 8 (b) Musculoskeletal injury and disorder risk factors and exposures at 9 work, including the hazards posed by excessive rates of work; 10 (c) Methods to reduce risk factors for musculoskeletal injuries and 11 disorders, including both engineering controls and administrative 12 controls, such as limitations on work pace and increased scheduled and 13 unscheduled breaks; 14 (d) The employer's program to identify risk factors as required under 15 this section and prevent musculoskeletal injuries and disorders, includ- 16 ing the summary protocols for medical treatment approved by the employ- 17 er's medical consultant; 18 (e) The rights and function of workplace safety committees established 19 under section twenty-seven-d of this chapter and the rights of employees 20 to report any risk factors, other hazards, injuries or health and safety 21 concerns; and 22 (f) Training on the unlawful retaliation of any provision in this 23 section, including the disciplinary actions required when supervisors or 24 managers violate the law or policy, as well as the employer's policy 25 prohibiting any workplace discrimination. 26 5. Any on-site medical office or first aid station that sees workers 27 in warehouses covered by this section with symptoms of musculoskeletal 28 injuries and disorders shall be staffed with medical professionals oper- 29 ating within their legal scope of practice. Nothing in this section 30 shall infringe on the rights of workers under the opening paragraph of 31 subdivision (a) of section thirteen of the workers' compensation law to 32 either select an authorized physician to treat employees and render 33 medical care or to select the continuance of any medical treatment or 34 care by an authorized physician selected by the employee. All examina- 35 tions and treatments by any medical personnel employed or selected by 36 the employer under section seven hundred eighty-one of this article 37 shall be performed for the purposes of the injury reduction program and 38 shall not interfere with the rights of employees to receive any medical 39 treatment or any other benefits under the workers' compensation law. 40 (a) Employers shall ensure that staffing and the practice of any first 41 aid or medical station meets state requirements for physician super- 42 vision of nurses, emergency medical technicians or other non-physician 43 personnel. 44 (b) In all warehouses with on-site medical or first aid providers for 45 the treatment of musculoskeletal injuries and disorders, the employer 46 shall consult with a medical consultant who is licensed by New York 47 state and board certified in occupational medicine. 48 (i) The employer shall obtain from the medical consultant a written 49 evaluation of the on-site medical or first aid provider program and 50 protocols followed in the warehouse for identification and treatment of 51 musculoskeletal injuries and disorders and shall include recommendations 52 to ensure compliance with accepted medical practice of the staffing, 53 supervision and documentation of medical treatment protocols. 54 (ii) The employer shall obtain from the medical consultant a summary 55 of treatment protocols suitable for worker patients covering all aspects 56 of the on-site medical and first aid practices, from early detection ofS. 5081--C 5 1 musculoskeletal injuries and disorders through evaluation by a qualified 2 physician and physician provision of appropriate work restrictions in 3 languages understood by the employees. 4 (iii) The employer shall ensure that the medical consultant reviews 5 the previous medical consultant evaluation, related materials and proto- 6 cols on an annual basis, and recommends changes as appropriate. 7 (iv) The employer shall ensure that all designated medical and first 8 aid providers have observed, in person, the jobs involving manual mate- 9 rials handling within the warehouse and all risk factors identified in 10 the evaluation conducted under the medical consultant evaluation. 11 (c) There shall be no delays in the provision of adequate medical care 12 to workers who report injuries to the on-site medical services. 13 (d) Each employer shall ensure that no supervisory or managerial 14 employee or other person discriminates or retaliates against any 15 current, former, or prospective employee or other person for reporting a 16 work-related injury or illness, or health and safety concern. 17 6. Employers shall ensure that employees and their designated repre- 18 sentatives are consulted both before and during the development and 19 implementation of all aspects of the program. Where employees have 20 established a workplace safety committee in compliance with section 21 twenty-seven-d of this chapter, the employer shall ensure that the 22 committee is consulted regarding the development and implementation of 23 all aspects of the injury reduction program. Any record created by the 24 employer according to this section shall be provided to the workplace 25 safety committee prior to consultation. All documents provided to 26 employees shall be provided in writing in English and in the language 27 identified by each employee as the primary language of such employee. 28 § 6. Severability. If any provision of this act, or any application of 29 any provision of this act, is held to be invalid, that shall not affect 30 the validity or effectiveness of any other provision of this act, or of 31 any other application of any provision of this act, which can be given 32 effect without that provision or application; and to that end, the 33 provisions and applications of this act are severable. 34 § 7. This act shall take effect on June 1, 2025; provided, however 35 that paragraph (d) of subdivision 2 of section 789 of the labor law as 36 added by section five of this act shall take effect on the one hundred 37 eightieth day after it shall have become a law; provided further, howev- 38 er, that paragraph (e) of subdivision 2 of section 789 of the labor law 39 as added by section five of this act shall take effect on the sixtieth 40 day after it shall have become a law; and provided further, however, 41 that paragraph (f) of subdivision 2 and subdivisions 4 and 5 of section 42 789 of the labor law as added by section five of this act shall take 43 effect on the sixtieth day after it shall have become a law.
