S T A T E   O F   N E W   Y O R K
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                                  8907--A
 
                           I N  A S S E M B L Y
 
                             January 26, 2024
                                ___________
 
 Introduced  by  M. of A. BRONSON, LEVENBERG, STECK, SHRESTHA, SEAWRIGHT,
   SIMON, LUPARDO, O'DONNELL,  BRABENEC,  OTIS,  SHIMSKY,  GLICK,  TAPIA,
   ARDILA,  HEVESI, BURDICK, BURGOS, GONZALEZ-ROJAS, EACHUS, CRUZ, ROZIC,
   SANTABARBARA, HUNTER, DAVILA, TAYLOR, KELLES, REYES, RAGA, BRAUNSTEIN,
   DINOWITZ,  COOK,  COLTON,  L. ROSENTHAL,  LUCAS,  JACOBSON,  RAMOS  --
   Multi-Sponsored  by  -- M.  of A. DICKENS -- read once and referred to
   the Committee on Labor -- reported and referred to  the  Committee  on
   Codes  --  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:
 
   Section  1. This act shall be known and may be cited as the "warehouse
 worker injury reduction program".
   § 2. Legislative findings. The legislature finds and declares that:
   (a) Workplace injuries can take a  terrible  toll  on  workers,  their
 families  and  their  communities,  and can create substantial costs for
 employers. According to recent data (2022) released  by  the  bureau  of
 labor  statistics,  the  warehouse  industry in New York state reports a
 rate of the most serious work-related injuries involving  lost  time  or
 restricted duty (7.8 cases/100 full-time workers) that is more than five
 times  the  average  rates  of  these  types of injuries for all private
 industry in New York state (1.5 cases/100 full-time workers).   In  2022
 alone,  there  were 5,472 workers injured in the warehousing industry in
 New York state.  The most common types of  work-related  serious  injury
 reported  by employers in the warehouse sector are musculoskeletal inju-
 ries, which often require workers to miss work  and  can  force  workers
 permanently out of the job and even out of the workforce.
   (b)  The  amount  and severity of injuries in New York's warehouses is
 having a direct impact on public health and safety. Each year, thousands
 of injured warehouse workers return to their  communities  with  chronic
 back,  neck,  shoulder and wrist pain that is often remedied by opiates.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD08912-07-4
              

 A. 8907--A                          2
 
 This feeds into the opiate epidemic that is  at  crisis  levels  in  our
 state.
   (c)  Many  communities  in  New  York  are underserved by full-service
 supermarkets and other essential stores and lack access  to  transporta-
 tion  to  buy  these essential supplies. Online retail may be their only
 source of basic necessities, including medical supplies  and  food.  The
 high  rate  of injuries at warehouses could lead to service disruptions,
 jeopardizing the health and safety of our communities. In fact,  accord-
 ing  to  an internal Amazon memo leaked to the press in 2021, Amazon has
 concerns that given the injury rates in the industry,  it  will  deplete
 the  available  warehouse labor supply in its U.S. network by 2024. This
 could impact the entire warehouse and  distribution  network,  impacting
 the public health of our communities.
   §  3. Section 780 of the labor law is amended by adding two new subdi-
 visions 8 and 9 to read as follows:
   8. "MUSCULOSKELETAL INJURIES AND DISORDERS" MEANS WORK  RELATED  INJU-
 RIES,  OR DISORDERS, OF THE MUSCLES, NERVES, TENDONS, LIGAMENTS, JOINTS,
 CARTILAGE OF THE UPPER AND LOWER LIMBS, NECK AND LOWER  BACK  (INCLUDING
 SPINAL  DISCS)  THAT:  (A)  ARE  CAUSED  BY SUDDEN OR SUSTAINED PHYSICAL
 EXERTION; OR (B) ARE NOT THE RESULT OF  ANY  INSTANTANEOUS  NON-EXERTION
 EVENT, SUCH AS SLIPS, TRIPS, OR FALLS.
   9.  "QUALIFIED  ERGONOMIST"  MEANS AN ERGONOMIST WHO IS ABLE TO DEMON-
 STRATE PROFICIENCY IN THE CORE, MINIMUM COMPETENCIES OF  ERGONOMICS  AND
 INJURY PREVENTION, AS DEFINED BY THE COMMISSIONER. UNTIL THE COMMISSION-
 ER DEFINES SUCH COMPETENCIES AND APPROVES ERGONOMISTS IN ACCORDANCE WITH
 SUCH  COMPETENCIES,  CONSULTANTS  APPROVED  BY THE COMMISSIONER UNDER 12
 NYCRR 59 AND 60 WITH A CREDENTIAL AS A CERTIFIED SAFETY PROFESSIONAL  OR
 CERTIFIED INDUSTRIAL HYGIENIST SHALL BE DEEMED TO QUALIFY AS AN ERGONOM-
 IST.
    § 4. Section 786 of the labor law is amended by adding a new subdivi-
 sion 3 to read as follows:
   3.  MAKING A COMPLAINT RELATED TO SECTION SEVEN HUNDRED EIGHTY-NINE OF
 THIS ARTICLE.
   § 5. The labor law is amended by adding a new section 789 to  read  as
 follows:
   §  789.  INJURY  REDUCTION  PROGRAM. 1. EVERY EMPLOYER SUBJECT TO THIS
 SECTION SHALL  ESTABLISH  AND  IMPLEMENT  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. THE PROGRAM SHALL INCLUDE: WORKSITE EVALUATION; CONTROL
 OF EXPOSURES, INCLUDING PACE, WHICH HAVE CAUSED OR HAVE THE POTENTIAL TO
 CAUSE MUSCULOSKELETAL INJURIES AND DISORDERS; EMPLOYEE TRAINING; ON-SITE
 MEDICAL AND FIRST AID PRACTICES; AND EMPLOYEE INVOLVEMENT.
   2. THE EMPLOYER SHALL ENSURE THAT EACH JOB, PROCESS, OR  OPERATION  OF
 WORK ACTIVITY COVERED BY THIS SECTION OR A REPRESENTATIVE NUMBER OF SUCH
 JOBS, PROCESSES, OR OPERATIONS OF IDENTICAL WORK ACTIVITIES SHALL HAVE A
 WRITTEN  WORK SITE EVALUATION BY A QUALIFIED ERGONOMIST FOR RISK FACTORS
 WHICH HAVE OR ARE LIKELY TO CAUSE MUSCULOSKELETAL  INJURIES  AND  DISOR-
 DERS.  SUCH  RISK  FACTORS  SHALL INCLUDE, BUT ARE NOT LIMITED TO, RAPID
 PACE, FORCEFUL EXERTIONS, REPETITIVE  MOTIONS,  TWISTING,  BENDING,  AND
 AWKWARD  POSTURES AND COMBINATIONS THEREOF THAT HAD CAUSED OR ARE LIKELY
 TO CAUSE MUSCULOSKELETAL INJURIES AND DISORDERS.
   (A) ANY WORKSITE EVALUATIONS SHALL ALSO DETERMINE WHETHER ANY  EMPLOY-
 EES  EXPOSED TO SUCH RISK FACTORS ARE SUBJECT TO EITHER PERSONNEL ACTION
 WITH THE POTENTIAL FOR ADVERSE ACTION, OR ADVERSE ACTION OR  TERMINATION
 A. 8907--A                          3
 
 THEMSELVES, ARISING IN WHOLE OR IN PART FROM AN EMPLOYER'S USE OF QUOTAS
 TO DETERMINE EMPLOYEE ASSIGNMENTS.
   (B)  ALL  SUCH  WORKSITE EVALUATIONS SHALL OBTAIN RECOMMENDATIONS FROM
 WORKERS WHO REGULARLY PERFORM THOSE JOBS ON THE  POSSIBLE  RISK  FACTORS
 AND ANY WORKPLACE CHANGES THAT CAN REDUCE SUCH RISK FACTORS.
   (C)  COPIES  OF  SUCH  WORKSITE  RISK FACTOR EVALUATIONS SHALL BE MADE
 AVAILABLE TO WORKERS AND THEIR REPRESENTATIVES UPON REQUEST, AT NO COST,
 WITHIN ONE BUSINESS DAY OF SUCH REQUEST.   WORKERS AND  THEIR  REPRESEN-
 TATIVES  SHALL  BE  NOTIFIED  IN  WRITING OF THE RESULTS OF THE WORKSITE
 EVALUATION. EMPLOYERS SHALL MAINTAIN ACCESSIBLE COPIES  OF  SUCH  EVALU-
 ATIONS  AT  LOCATIONS  WITHIN  THE  WAREHOUSE AND SHALL MAKE SUCH COPIES
 READILY AVAILABLE TO WORKERS.
   (D) AN INITIAL WORKSITE EVALUATION SHALL BE CONDUCTED.  WORKSITE EVAL-
 UATIONS SHALL BE REVIEWED AND UPDATED AT LEAST ANNUALLY. A NEW  ANALYSIS
 OF  RISK FACTORS SHALL BE CONDUCTED IN ACCORDANCE WITH THE PROVISIONS OF
 SUBDIVISION ONE OF THIS SECTION WHENEVER A NEW JOB, PROCESS,  OR  OPERA-
 TION  IS INTRODUCED WHICH COULD INCREASE THE RISK FACTORS FOR MUSCULOSK-
 ELETAL INJURIES AND DISORDERS.   SUCH NEW ANALYSIS  SHALL  BE  CONDUCTED
 WITHIN THIRTY DAYS OF THE CREATION OR CHANGE OF A JOB, PROCESS OR OPERA-
 TION.
   (E)  THE  COMMISSIONER SHALL FORM A TASK FORCE CHAIRED BY A RECOGNIZED
 ACADEMIC LEADER IN THE FIELD OF ERGONOMICS IN NEW YORK STATE AND INCLUD-
 ING, BUT NOT LIMITED TO, REPRESENTATIVES FROM THE  WAREHOUSE  WORKFORCE,
 LABOR ORGANIZATIONS ACTIVE IN THE WAREHOUSING INDUSTRY, AND EMPLOYERS IN
 THE  INDUSTRY,  TO  RECOMMEND  THE  CORE  COMPETENCIES  REQUIRED FOR THE
 CERTIFICATION OF QUALIFIED ERGONOMISTS, AS WELL AS STANDARDIZED WORKSITE
 EVALUATIONS AND CONTROLS.
   (F) THE COMMISSIONER SHALL ADOPT A STANDARD AND PROCESS FOR CERTIFYING
 QUALIFIED ERGONOMISTS, AS WELL AS STANDARDIZED WORKSITE EVALUATIONS  AND
 CONTROLS, BASED ON THE RECOMMENDATIONS OF THE TASK FORCE.
   3.  THE  EMPLOYER  SHALL  CORRECT  IN A TIMELY MANNER ANY RISK FACTORS
 IDENTIFIED AS HAVING CAUSED OR BEING  LIKELY  TO  CAUSE  MUSCULOSKELETAL
 INJURIES  AND  DISORDERS.  FOR  ANY  CORRECTIONS WHICH REQUIRE MORE THAN
 THIRTY DAYS TO COMPLETE, THE  EMPLOYER  SHALL  REVISE,  AS  NEEDED,  AND
 PROVIDE A SCHEDULE FOR SUCH PROPOSED CORRECTIONS. SUCH SCHEDULE SHALL BE
 INCLUDED  IN  THE  EVALUATIONS  PROVIDED  TO WORKERS AND THEIR REPRESEN-
 TATIVES.
   (A) WHERE THE EMPLOYER DEMONSTRATES THAT IT  IS  UNABLE  TO  ELIMINATE
 IDENTIFIED  RISK  FACTORS,  THE EMPLOYER SHALL MINIMIZE THE EXPOSURES TO
 THE EXTENT FEASIBLE.
   (B) IN REDUCING RISK FACTORS, THE EMPLOYER SHALL CONSIDER:
   (I) ENGINEERING CONTROLS  AND  REDESIGNING  WORK  STATIONS  TO  CHANGE
 SHELVING HEIGHTS, PROVIDE ADJUSTABLE FIXTURES OR TOOL REDESIGN; AND
   (II)  ADMINISTRATIVE  CONTROLS, SUCH AS JOB ROTATION WHICH REDUCES THE
 EXPOSURE TO RISK FACTORS, REDUCED WORK PACING OR ADDITIONAL WORK BREAKS.
   (C) EMPLOYERS SHALL MAINTAIN RECORDS OF STEPS TAKEN  TO  ELIMINATE  OR
 REDUCE RISK FACTORS AND SHALL MAKE COPIES AVAILABLE TO WORKERS AND THEIR
 REPRESENTATIVES UPON REQUEST.
   4.  ALL  EMPLOYERS  COVERED  BY  THIS  SECTION  SHALL  PROVIDE  INJURY
 REDUCTION TRAINING TO ALL EMPLOYEES INVOLVED IN PERFORMING MANUAL  MATE-
 RIALS  HANDLING JOBS AND TASKS AT THE WAREHOUSE DURING NORMAL WORK HOURS
 AND WITHOUT SUFFERING A LOSS OF PAY. SUCH TRAINING SHALL BE PROVIDED  IN
 A  LANGUAGE  AND  VOCABULARY  THAT  THE  WORKERS UNDERSTAND AND SHALL BE
 REPEATED ANNUALLY. THE TRAINING SHALL ALSO BE PROVIDED TO  THE  WORKERS'
 SUPERVISORS. SUCH TRAINING SHALL BE IN ADDITION TO THE TRAINING REQUIRED
 UNDER SECTION TWENTY-SEVEN-D OF THIS CHAPTER AND SHALL INCLUDE:
 A. 8907--A                          4
 
   (A)  THE  EARLY SYMPTOMS OF MUSCULOSKELETAL INJURIES AND DISORDERS AND
 THE IMPORTANCE OF EARLY DETECTION;
   (B)  MUSCULOSKELETAL INJURY AND DISORDER RISK FACTORS AND EXPOSURES AT
 WORK, INCLUDING THE HAZARDS POSED BY EXCESSIVE RATES OF WORK;
   (C) METHODS TO REDUCE RISK FACTORS FOR  MUSCULOSKELETAL  INJURIES  AND
 DISORDERS,   INCLUDING  BOTH  ENGINEERING  CONTROLS  AND  ADMINISTRATIVE
 CONTROLS, SUCH AS LIMITATIONS ON WORK PACE AND INCREASED  SCHEDULED  AND
 UNSCHEDULED BREAKS;
   (D)  THE EMPLOYER'S PROGRAM TO IDENTIFY RISK FACTORS AS REQUIRED UNDER
 THIS SECTION AND PREVENT MUSCULOSKELETAL INJURIES AND DISORDERS, INCLUD-
 ING THE SUMMARY PROTOCOLS FOR MEDICAL TREATMENT APPROVED BY THE  EMPLOY-
 ER'S MEDICAL CONSULTANT;
   (E) THE RIGHTS AND FUNCTION OF WORKPLACE SAFETY COMMITTEES ESTABLISHED
 UNDER SECTION TWENTY-SEVEN-D OF THIS CHAPTER AND THE RIGHTS OF EMPLOYEES
 TO REPORT ANY RISK FACTORS, OTHER HAZARDS, INJURIES OR HEALTH AND SAFETY
 CONCERNS; AND
   (F)  TRAINING  ON  THE  UNLAWFUL  RETALIATION OF ANY PROVISION IN THIS
 SECTION, INCLUDING THE DISCIPLINARY ACTIONS REQUIRED WHEN SUPERVISORS OR
 MANAGERS VIOLATE THE LAW OR POLICY, AS WELL  AS  THE  EMPLOYER'S  POLICY
 PROHIBITING ANY WORKPLACE DISCRIMINATION.
   5.  ANY  ON-SITE MEDICAL OFFICE OR FIRST AID STATION THAT SEES WORKERS
 IN WAREHOUSES COVERED BY THIS SECTION WITH SYMPTOMS  OF  MUSCULOSKELETAL
 INJURIES AND DISORDERS SHALL BE STAFFED WITH MEDICAL PROFESSIONALS OPER-
 ATING  WITHIN  THEIR  LEGAL SCOPE OF PRACTICE.   NOTHING IN THIS SECTION
 SHALL INFRINGE ON THE RIGHTS OF WORKERS UNDER THE OPENING  PARAGRAPH  OF
 SUBDIVISION  (A) OF SECTION THIRTEEN OF THE WORKERS' COMPENSATION LAW TO
 EITHER SELECT AN AUTHORIZED PHYSICIAN  TO  TREAT  EMPLOYEES  AND  RENDER
 MEDICAL  CARE  OR  TO SELECT THE CONTINUANCE OF ANY MEDICAL TREATMENT OR
 CARE BY AN AUTHORIZED PHYSICIAN SELECTED BY THE EMPLOYEE.  ALL  EXAMINA-
 TIONS  AND  TREATMENTS  BY ANY MEDICAL PERSONNEL EMPLOYED OR SELECTED BY
 THE EMPLOYER UNDER SECTION SEVEN  HUNDRED  EIGHTY-ONE  OF  THIS  ARTICLE
 SHALL  BE PERFORMED FOR THE PURPOSES OF THE INJURY REDUCTION PROGRAM AND
 SHALL NOT INTERFERE WITH THE RIGHTS OF EMPLOYEES TO RECEIVE ANY  MEDICAL
 TREATMENT OR ANY OTHER BENEFITS UNDER THE WORKERS' COMPENSATION LAW.
   (A) EMPLOYERS SHALL ENSURE THAT STAFFING AND THE PRACTICE OF ANY FIRST
 AID  OR  MEDICAL  STATION  MEETS STATE REQUIREMENTS FOR PHYSICIAN SUPER-
 VISION OF NURSES, EMERGENCY MEDICAL TECHNICIANS OR  OTHER  NON-PHYSICIAN
 PERSONNEL.
   (B)  IN ALL WAREHOUSES WITH ON-SITE MEDICAL OR FIRST AID PROVIDERS FOR
 THE TREATMENT OF MUSCULOSKELETAL INJURIES AND  DISORDERS,  THE  EMPLOYER
 SHALL  CONSULT  WITH  A  MEDICAL  CONSULTANT WHO IS LICENSED BY NEW YORK
 STATE AND BOARD CERTIFIED IN OCCUPATIONAL MEDICINE.
   (I) THE EMPLOYER SHALL OBTAIN FROM THE MEDICAL  CONSULTANT  A  WRITTEN
 EVALUATION  OF  THE  ON-SITE  MEDICAL  OR FIRST AID PROVIDER PROGRAM AND
 PROTOCOLS FOLLOWED IN THE WAREHOUSE FOR IDENTIFICATION AND TREATMENT  OF
 MUSCULOSKELETAL INJURIES AND DISORDERS AND SHALL INCLUDE RECOMMENDATIONS
 TO  ENSURE  COMPLIANCE  WITH  ACCEPTED MEDICAL PRACTICE OF THE STAFFING,
 SUPERVISION AND DOCUMENTATION OF MEDICAL TREATMENT PROTOCOLS.
   (II) THE EMPLOYER SHALL OBTAIN FROM THE MEDICAL CONSULTANT  A  SUMMARY
 OF TREATMENT PROTOCOLS SUITABLE FOR WORKER PATIENTS COVERING ALL ASPECTS
 OF  THE ON-SITE MEDICAL AND FIRST AID PRACTICES, FROM EARLY DETECTION OF
 MUSCULOSKELETAL INJURIES AND DISORDERS THROUGH EVALUATION BY A QUALIFIED
 PHYSICIAN AND PHYSICIAN PROVISION OF APPROPRIATE  WORK  RESTRICTIONS  IN
 LANGUAGES UNDERSTOOD BY THE EMPLOYEES.
 A. 8907--A                          5
 
   (III)  THE  EMPLOYER  SHALL ENSURE THAT THE MEDICAL CONSULTANT REVIEWS
 THE PREVIOUS MEDICAL CONSULTANT EVALUATION, RELATED MATERIALS AND PROTO-
 COLS ON AN ANNUAL BASIS, AND RECOMMENDS CHANGES AS APPROPRIATE.
   (IV)  THE  EMPLOYER SHALL ENSURE THAT ALL DESIGNATED MEDICAL AND FIRST
 AID PROVIDERS HAVE OBSERVED, IN PERSON, THE JOBS INVOLVING MANUAL  MATE-
 RIALS  HANDLING  WITHIN THE WAREHOUSE AND ALL RISK FACTORS IDENTIFIED IN
 THE EVALUATION CONDUCTED UNDER THE MEDICAL CONSULTANT EVALUATION.
   (C) THERE SHALL BE NO DELAYS IN THE PROVISION OF ADEQUATE MEDICAL CARE
 TO WORKERS WHO REPORT INJURIES TO THE ON-SITE MEDICAL SERVICES.
   (D) EACH EMPLOYER SHALL  ENSURE  THAT  NO  SUPERVISORY  OR  MANAGERIAL
 EMPLOYEE  OR  OTHER  PERSON  DISCRIMINATES  OR  RETALIATES  AGAINST  ANY
 CURRENT, FORMER, OR PROSPECTIVE EMPLOYEE OR OTHER PERSON FOR REPORTING A
 WORK-RELATED INJURY OR ILLNESS, OR HEALTH AND SAFETY CONCERN.
   6. EMPLOYERS SHALL ENSURE THAT EMPLOYEES AND THEIR  DESIGNATED  REPRE-
 SENTATIVES  ARE  CONSULTED  BOTH  BEFORE  AND DURING THE DEVELOPMENT AND
 IMPLEMENTATION OF ALL ASPECTS  OF  THE  PROGRAM.  WHERE  EMPLOYEES  HAVE
 ESTABLISHED  A  WORKPLACE  SAFETY  COMMITTEE  IN COMPLIANCE WITH SECTION
 TWENTY-SEVEN-D OF THIS CHAPTER,  THE  EMPLOYER  SHALL  ENSURE  THAT  THE
 COMMITTEE  IS  CONSULTED REGARDING THE DEVELOPMENT AND IMPLEMENTATION OF
 ALL ASPECTS OF THE INJURY REDUCTION PROGRAM. ANY RECORD CREATED  BY  THE
 EMPLOYER  ACCORDING  TO  THIS SECTION SHALL BE PROVIDED TO THE WORKPLACE
 SAFETY COMMITTEE  PRIOR  TO  CONSULTATION.  ALL  DOCUMENTS  PROVIDED  TO
 EMPLOYEES  SHALL  BE  PROVIDED IN WRITING IN ENGLISH AND IN THE LANGUAGE
 IDENTIFIED BY EACH EMPLOYEE AS THE PRIMARY LANGUAGE OF SUCH EMPLOYEE.
   § 6. Severability. If any provision of this act, or any application of
 any provision of this act, is held to be invalid, that shall not  affect
 the  validity or effectiveness of any other provision of this act, or of
 any other application of any provision of this act, which can  be  given
 effect  without  that  provision  or  application;  and to that end, the
 provisions and applications of this act are severable.
   § 7. This act shall take effect on June  1,  2025;  provided,  however
 that  paragraph  (d) of subdivision 2 of section 789 of the labor law as
 added by section five of this act shall take effect on the  one  hundred
 eightieth day after it shall have become a law; provided further, howev-
 er,  that paragraph (e) of subdivision 2 of section 789 of the labor law
 as added by section five of this act shall take effect on  the  sixtieth
 day  after  it  shall  have become a law; and provided further, however,
 that paragraph (f) of subdivision 2 and subdivisions 4 and 5 of  section
 789  of  the  labor  law as added by section five of this act shall take
 effect on the sixtieth day after it shall have become a law.