Bill Text: NY S05698 | 2023-2024 | General Assembly | Introduced
Bill Title: Enacts the "protection in the workplace act"; provides that injuries to employees as a result of the commission of a sexual offense shall entitle such employee to all rights and benefits available pursuant to the workers' compensation law and, in addition, shall permit such employee to pursue any other remedies available at law or in equity; clarifies that workers' compensation should be exclusive remedy except when the employee suffers personal injury as a result of a sexual offense committed by a co-worker.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2024-01-03 - REFERRED TO LABOR [S05698 Detail]
Download: New_York-2023-S05698-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5698 2023-2024 Regular Sessions IN SENATE March 13, 2023 ___________ Introduced by Sen. PARKER -- read twice and ordered printed, and when printed to be committed to the Committee on Labor AN ACT to amend the workers' compensation law, in relation to enacting the "protection in the workplace act" The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Short title. This act shall be known and may be cited as 2 the "protection in the workplace act". 3 § 2. Legislative intent. It is the finding of this legislature that 4 violence in the workplace has become an increasingly serious occupa- 5 tional hazard, which all too many employees and employers must confront. 6 While it is the intent of the workers' compensation system to provide 7 medical aid and monetary compensation to injured workers or their survi- 8 vors in return for the surrender of their right to petition the courts, 9 it is the finding of this body that rape, sexual assault or other sex 10 crimes should not be classified as a condition of employment at the 11 expense of the workers' compensation system's ameliorative goals and 12 that such system is not and should not be used as a shield to permit 13 employers whose negligent acts or omissions cause injury or harm to 14 fellow employees without such injured employees having every opportunity 15 for full and adequate redress. For purposes of determining benefits 16 pursuant to the workers' compensation law, sexual assault is not, and 17 shall not be considered a condition of employment. 18 It is therefore the intent of this legislation to ensure that workers 19 suffering sexual assault in the workplace due to the derelict or negli- 20 gent practices of their employer, receive appropriate medical care and 21 benefits but also have every opportunity to recover all damages commen- 22 surate with their injury. 23 § 3. The workers' compensation law is amended by adding a new section 24 10-a to read as follows: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07273-01-3S. 5698 2 1 § 10-a. Liability resulting from sexual offenses. Notwithstanding any 2 other provision of law, any employee suffering injury or personal injury 3 pursuant to subdivision seven of section two of this chapter as a conse- 4 quence of a sexual offense as defined in article one hundred thirty of 5 the penal law due to negligent acts or omissions of the employer shall 6 be entitled to all rights and benefits available pursuant to this chap- 7 ter and, in addition may pursue any remedy available in equity or at 8 law, for compensation for any and all damages resulting from such inju- 9 ry. 10 § 4. Section 11 of the workers' compensation law, as amended by chap- 11 ter 835 of the laws of 2022, is amended to read as follows: 12 § 11. Alternative remedy. 1. The liability of an employer prescribed 13 by [the last preceding] section ten of this article shall be exclusive 14 and in place of any other liability whatsoever, to such employee, his or 15 her personal representatives, spouse, parents, dependents, distributees, 16 or any person otherwise entitled to recover damages, contribution or 17 indemnity, at common law or otherwise, on account of such injury or 18 death or liability arising therefrom, except that if an employer fails 19 to secure the payment of compensation for his or her injured employees 20 and their dependents as provided in section fifty of this chapter, an 21 injured employee, or his or her legal representative in case of death 22 results from the injury, may, at his or her option, elect to claim 23 compensation under this chapter, or to maintain an action in the courts 24 for damages on account of such injury; and in such an action it shall 25 not be necessary to plead or prove freedom from contributory negligence 26 nor may the defendant plead as a defense that the injury was caused by 27 the negligence of a fellow servant nor that the employee assumed the 28 risk of his or her employment, nor that the injury was due to the 29 contributory negligence of the employee. The liability under this chap- 30 ter of The New York Jockey Injury Compensation Fund, Inc. created under 31 section two hundred twenty-one of the racing, pari-mutuel wagering and 32 breeding law shall be limited to the provision of workers' compensation 33 coverage to jockeys, apprentice jockeys, exercise persons, and at the 34 election of the New York Jockey Injury Compensation Fund, Inc., with the 35 approval of the New York state gaming commission, employees of licensed 36 trainers or owners licensed under article two or four of the racing, 37 pari-mutuel wagering and breeding law and any statutory penalties 38 resulting from the failure to provide such coverage. 39 2. For purposes of this section the terms "indemnity" and "contrib- 40 ution" shall not include a claim or cause of action for contribution or 41 indemnification based upon a provision in a written contract entered 42 into prior to the accident or occurrence by which the employer had 43 expressly agreed to contribution to or indemnification of the claimant 44 or person asserting the cause of action for the type of loss suffered. 45 3. An employer shall not be liable for contribution or indemnity to 46 any third person based upon liability for injuries sustained by an 47 employee acting within the scope of his or her employment for such 48 employer unless such third person proves through competent medical 49 evidence that such employee has sustained a "grave injury" which shall 50 mean only one or more of the following: death, permanent and total loss 51 of use or amputation of an arm, leg, hand or foot, loss of multiple 52 fingers, loss of multiple toes, paraplegia or quadriplegia, total and 53 permanent blindness, total and permanent deafness, loss of nose, loss of 54 ear, permanent and severe facial disfigurement, loss of an index finger 55 or an acquired injury to the brain caused by an external physical force 56 resulting in permanent total disability.S. 5698 3 1 4. For purposes of this section "person" means any individual, firm, 2 company, partnership, corporation, joint venture, joint-stock associ- 3 ation, association, trust or legal entity. 4 5. The liability under this chapter of the New York black car opera- 5 tors' injury compensation fund, inc. shall be limited to: (i) securing 6 the payment of workers' compensation in accordance with article six-F of 7 the executive law to black car operators, as defined in such article, 8 whose injury arose out of and in the course of providing services for a 9 central dispatch facility, as defined in such article, that is a regis- 10 tered member of such fund, and (ii) any statutory penalty resulting from 11 the failure to secure such payment. The liability under this chapter of 12 a central dispatch facility, as defined in article six-F of the execu- 13 tive law, that is a registered member of the New York black car opera- 14 tors' injury compensation fund, inc. that shall be limited to remaining 15 a registered member in good standing of such fund and any statutory 16 penalty, including loss of immunity provided by this section, resulting 17 from the failure to become or remain a registered member in good stand- 18 ing of such fund, except, however, that such central dispatch facility 19 shall be subject to the provisions of section one hundred thirty-one of 20 this chapter and shall be liable for any payments for which it may 21 become responsible pursuant to such section or pursuant to section four- 22 teen-a of this article. 23 6. The liability under this chapter of the New York independent livery 24 driver benefit fund, inc. shall be limited to: (i) securing the payment 25 of workers' compensation coverage to cover those matters required by 26 article six-G of the executive law for independent livery drivers, as 27 defined in such article, whose injury arose out of and in the course of 28 providing covered services for a livery base, as defined in such arti- 29 cle, that is a registered member of such fund, and (ii) any statutory 30 penalty resulting from the failure to secure such payment. 31 [2.] 7. Determination by the board shall not be given collateral 32 estoppel effect in any other action or proceeding arising out of the 33 same occurrence, other than the determination of the existence of an 34 employer employee relationship. 35 8. Notwithstanding any other provision of law, an employee suffering 36 an injury or personal injury as a result of a sexual offense as defined 37 in article one hundred thirty of the penal law, due to negligent acts or 38 omissions of the employer shall be entitled to all rights and benefits 39 available pursuant to this chapter and, in addition may pursue any reme- 40 dy available in equity or at law for compensation for damages resulting 41 from such injury. Any insurance carrier providing workers' compensation 42 benefits pursuant to this section shall be entitled to a lien on any 43 damages awarded pursuant to this section, provided that no such lien 44 shall be in an amount greater than the amount of benefits paid by such 45 insurance carrier. 46 § 5. Subdivision 6 of section 29 of the workers' compensation law, as 47 amended by chapter 635 of the laws of 1996, is amended to read as 48 follows: 49 6. The right to compensation or benefits under this chapter, shall be 50 the exclusive remedy to an employee, or in case of death his or her 51 dependents, when such employee is injured or killed by the negligence or 52 wrong of another in the same employ, unless such employee was injured or 53 killed as a consequence of a sexual offense, as defined in article one 54 hundred thirty of the penal law, the employer's insurer or any collec- 55 tive bargaining agent of the employer's employees or any employee, of 56 such insurer or such collective bargaining agent (while acting withinS. 5698 4 1 the scope of his or her employment). The limitation of liability of an 2 employer set forth in section eleven of this article for the injury or 3 death of an employee shall be applicable to another in the same employ, 4 the employer's insurer, any collective bargaining agent of the employ- 5 er's employees or any employee of the employer's insurer or such collec- 6 tive bargaining agent (while acting within the scope of his or her 7 employment). The option to maintain an action in the courts for damages 8 based on the employer's failure to secure compensation for injured 9 employees and their dependents as set forth in section eleven of this 10 article shall not be construed to include the right to maintain an 11 action against another in the same employ, the employer's insurer, any 12 collective bargaining agent of the employer's employees or any employee 13 of the employer's insurer or such collective bargaining agent (while 14 acting within the scope of his or her employment). 15 § 6. This act shall take effect immediately.
