S. 5081 2
solutions to reduce the dangerous risk factors, professionally competent
medical management, effective worker training, and meaningful involve-
ment by workers and their representatives in all aspects of the program.
§ 3. The labor law is amended by adding a new article 21-B to read as
follows:
ARTICLE 21-B
WAREHOUSE WORKER INJURY REDUCTION ACT
SECTION 790. DEFINITIONS.
791. INJURY REDUCTION PROGRAM.
792. UNLAWFUL RETALIATION.
793. SUBPOENA.
794. ENFORCEMENT.
795. PRIVATE RIGHT OF ACTION.
796. RECORDS.
797. OTHER POWERS.
§ 790. DEFINITIONS. AS USED IN THIS ARTICLE:
1. "EMPLOYER" MEANS A PERSON WHO DIRECTLY OR INDIRECTLY, OR THROUGH AN
AGENT OR ANY OTHER PERSON, INCLUDING THROUGH THE SERVICES OF A THIRD-
PARTY EMPLOYER, TEMPORARY SERVICES, OR STAFFING AGENCY, INDEPENDENT
CONTRACTOR, OR ANY SIMILAR ENTITY, AT ANY TIME IN THE PRIOR TWELVE
MONTHS, EMPLOYS OR EXERCISES CONTROL OVER THE WAGES, HOURS, OR WORKING
CONDITIONS OF ONE HUNDRED OR MORE EMPLOYEES AT A SINGLE WAREHOUSE
DISTRIBUTION CENTER OR FIVE HUNDRED OR MORE EMPLOYEES AT ONE OR MORE
WAREHOUSE DISTRIBUTION CENTERS IN THE STATE.
FOR THE PURPOSES OF THIS SUBDIVISION: (A) ALL EMPLOYEES EMPLOYED
DIRECTLY OR INDIRECTLY, OR THROUGH AN AGENT OR ANY OTHER PERSON, AS
DESCRIBED IN THE OPENING PARAGRAPH OF THIS SUBDIVISION, AS WELL AS ANY
EMPLOYEE EMPLOYED BY A MEMBER OF A CONTROLLED GROUP OF CORPORATIONS OF
WHICH THE EMPLOYER IS A MEMBER, SHALL BE COUNTED IN DETERMINING THE
NUMBER OF EMPLOYEES EMPLOYED AT A SINGLE WAREHOUSE DISTRIBUTION CENTER
OR AT ONE OR MORE WAREHOUSE DISTRIBUTION CENTERS IN THE STATE; AND (B)
ALL AGENTS OR OTHER PERSONS, AS DESCRIBED IN THE OPENING PARAGRAPH OF
THIS SUBDIVISION, AND ALL MEMBERS OF A CONTROLLED GROUP OF CORPORATIONS
OF WHICH THE EMPLOYER IS A MEMBER, SHALL BE DEEMED TO BE EMPLOYERS AND
SHALL BE JOINTLY AND SEVERALLY RESPONSIBLE FOR COMPLIANCE WITH THIS
ARTICLE. FOR PURPOSES OF THIS SUBDIVISION, THE TERM "CONTROLLED GROUP OF
CORPORATIONS" SHALL BE DEFINED AS PROVIDED UNDER SECTION 1563 OF THE
INTERNAL REVENUE CODE, 26 U.S.C. SECTION 1563, EXCEPT THAT FIFTY PERCENT
SHALL BE SUBSTITUTED FOR EIGHTY PERCENT WHERE EIGHTY PERCENT IS SPECI-
FIED IN THAT DEFINITION.
2. "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.
3. "PERSON" MEANS AN INDIVIDUAL, CORPORATION, PARTNERSHIP, LIMITED
PARTNERSHIP, LIMITED LIABILITY PARTNERSHIP, LIMITED LIABILITY COMPANY,
BUSINESS TRUST, ESTATE, TRUST, ASSOCIATION, JOINT VENTURE, AGENCY,
INSTRUMENTALITY, OR ANY OTHER LEGAL OR COMMERCIAL ENTITY, WHETHER DOMES-
TIC OR FOREIGN.
4. "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
S. 5081 3
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.
5. "WAREHOUSE DISTRIBUTION CENTER" MEANS AN ESTABLISHMENT AS DEFINED
BY ANY OF THE FOLLOWING NORTH AMERICAN INDUSTRY CLASSIFICATION SYSTEM
("NAICS") CODES, HOWEVER SUCH ESTABLISHMENT IS DENOMINATED:
(A) FOUR HUNDRED NINETY-THREE FOR WAREHOUSING AND STORAGE;
(B) FOUR HUNDRED TWENTY-THREE FOR MERCHANT WHOLESALERS, DURABLE GOODS;
(C) FOUR HUNDRED TWENTY-FOUR FOR MERCHANT WHOLESALERS, NONDURABLE
GOODS;
(D) FOUR HUNDRED FIFTY-FOUR THOUSAND ONE HUNDRED TEN FOR ELECTRONIC
SHOPPING AND MAIL-ORDER HOUSES; OR
(E) FOUR HUNDRED NINETY-TWO THOUSAND ONE HUNDRED TEN FOR COURIERS AND
EXPRESS DELIVERY SERVICES.
§ 791. 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; MEDICAL
MANAGEMENT; 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
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 WITHIN THREE
MONTHS AFTER THE EFFECTIVE DATE OF THIS ARTICLE. WORKSITE EVALUATIONS
SHALL BE REVIEWED AND UPDATED AT LEAST ANNUALLY THEREAFTER. A NEW ANALY-
SIS OF RISK FACTORS SHALL BE CONDUCTED IN ACCORDANCE WITH THE PROVISIONS
OF SUBDIVISION ONE OF THIS SECTION WHENEVER A NEW JOB, PROCESS, OR OPER-
ATION 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.
S. 5081 4
(E) WITHIN THREE MONTHS OF THE EFFECTIVE DATE OF THIS ARTICLE, THE
COMMISSIONER SHALL FORM A TASK FORCE CHAIRED BY A RECOGNIZED ACADEMIC
LEADER IN THE FIELD OF ERGONOMICS IN NEW YORK STATE AND INCLUDING, 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 CERTIF-
ICATION OF QUALIFIED ERGONOMISTS. WITHIN SIX MONTHS OF THE EFFECTIVE
DATE OF THIS ARTICLE, THE COMMISSIONER SHALL ADOPT A STANDARD AND PROC-
ESS FOR CERTIFYING QUALIFIED ERGONOMISTS 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) 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.
S. 5081 5
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.
(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 WHERE EMPLOYERS REQUIRE THAT WORKERS WITH SIGNS
AND SYMPTOMS OF MUSCULOSKELETAL INJURIES AND DISORDERS SHALL FIRST BE
SEEN BY AN ON-SITE MEDICAL OR FIRST AID PROVIDER OR HAVE THE APPROVAL OF
THE EMPLOYER PRIOR TO BEING SENT TO A DOCTOR, 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 MEDICAL MANAGEMENT PROGRAM AND PROTOCOLS FOLLOWED IN
THE WAREHOUSE FOR IDENTIFICATION AND TREATMENT OF MUSCULOSKELETAL INJU-
RIES AND DISORDERS AND SHALL INCLUDE RECOMMENDATIONS TO ENSURE COMPLI-
ANCE 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 MEDICAL MANAGEMENT PRACTICES, FROM EARLY DETECTION OF MUSCULOSK-
ELETAL INJURIES AND DISORDERS THROUGH EVALUATION BY A QUALIFIED PHYSI-
CIAN AND PHYSICIAN PROVISION OF APPROPRIATE WORK RESTRICTIONS IN
LANGUAGES UNDERSTOOD BY THE EMPLOYEES.
(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 UNNECESSARY 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.
§ 792. UNLAWFUL RETALIATION. 1. NO PERSON, INCLUDING BUT NOT LIMITED
TO AN EMPLOYER, HIS OR HER AGENT, OR PERSON ACTING AS OR ON BEHALF OF A
HIRING ENTITY, OR THE OFFICER OR AGENT OF ANY ENTITY, BUSINESS, CORPO-
RATION, PARTNERSHIP, OR LIMITED LIABILITY COMPANY, SHALL DISCHARGE OR IN
ANY WAY RETALIATE, DISCRIMINATE OR TAKE ADVERSE ACTION AGAINST ANY
S. 5081 6
PERSON FOR EXERCISING ANY RIGHTS CONFERRED UNDER THIS ARTICLE, OR FOR
BEING PERCEIVED AS EXERCISING RIGHTS CONFERRED BY THIS ARTICLE, INCLUD-
ING, BUT NOT LIMITED TO, MAKING A COMPLAINT RELATED TO SECTION SEVEN
HUNDRED NINETY-ONE OF THIS ARTICLE.
2. AN EMPLOYEE NEED NOT EXPLICITLY REFER TO THIS ARTICLE OR THE RIGHTS
ENUMERATED HEREIN TO BE PROTECTED FROM AN ADVERSE ACTION. PROTECTIONS OF
THIS SECTION SHALL APPLY TO FORMER EMPLOYEES AND TO EMPLOYEES WHO
MISTAKENLY BUT IN GOOD FAITH ALLEGE VIOLATIONS OF THIS ARTICLE.
3. IF A PERSON TAKES ADVERSE ACTION AGAINST AN EMPLOYEE WITHIN NINETY
DAYS OF THE EMPLOYEE'S ENGAGING OR ATTEMPTING TO ENGAGE IN ACTIVITIES
PROTECTED BY THIS ARTICLE, SUCH CONDUCT SHALL RAISE A REBUTTABLE
PRESUMPTION THAT THE ACTION IS AN ADVERSE ACTION IN VIOLATION OF THIS
ARTICLE. SUCH PRESUMPTION MAY BE REBUTTED BY CLEAR AND CONVINCING
EVIDENCE THAT: (A) THE ACTION WAS TAKEN FOR OTHER PERMISSIBLE REASONS;
AND (B) THE ENGAGING OR ATTEMPTING TO ENGAGE IN ACTIVITIES PROTECTED BY
THIS ARTICLE WAS NOT A MOTIVATING FACTOR IN THE ADVERSE ACTION.
§ 793. SUBPOENA. UPON RECEIVING A COMPLAINT REGARDING A VIOLATION OF
THIS ARTICLE, THE COMMISSIONER MAY REQUEST OR SUBPOENA EMPLOYER RECORDS
OR DATA RELATED TO THIS ARTICLE.
§ 794. ENFORCEMENT. 1. THE COMMISSIONER SHALL BE AUTHORIZED TO ENFORCE
THE PROVISIONS OF THIS ARTICLE.
2. (A) ANY EMPLOYEE OR REPRESENTATIVE OF EMPLOYEES WHO BELIEVES THAT
AN EMPLOYER MAY VIOLATE THE REQUIREMENTS OF THIS ARTICLE OR THAT AN
IMMINENT DANGER EXISTS, MAY REQUEST AN INSPECTION BY GIVING NOTICE TO
THE COMMISSIONER OF SUCH VIOLATION OR DANGER. SUCH NOTICE AND REQUEST
SHALL:
(I) BE IN WRITING, EITHER PHYSICAL OR ELECTRONIC;
(II) SET FORTH WITH REASONABLE PARTICULARITY THE GROUNDS FOR THE
NOTICE;
(III) BE SIGNED BY THE EMPLOYEE OR REPRESENTATIVE OF EMPLOYEES;
(IV) BE PROVIDED BY THE COMMISSIONER TO THE EMPLOYER OR THE PERSON IN
CHARGE NO LATER THAN THE TIME OF INSPECTION, EXCEPT THAT THE NAME OF THE
PERSON GIVING NOTICE TO THE COMMISSIONER AND THE NAMES OF INDIVIDUAL
EMPLOYEES OR REPRESENTATIVES OF EMPLOYEES SHALL BE WITHHELD UNLESS SUCH
EMPLOYEES OR REPRESENTATIVES HAVE PROVIDED EXPRESS WRITTEN PERMISSION
FOR SUCH INFORMATION TO BE SHARED.
(B) INSPECTIONS PURSUANT TO THIS SUBDIVISION SHALL BE MADE WITHIN
THREE DAYS OF RECEIPT OF NOTICE BY THE COMMISSIONER.
3. A REPRESENTATIVE OF THE EMPLOYER AND A DESIGNATED EMPLOYEE REPRE-
SENTATIVE SHALL BE GIVEN THE OPPORTUNITY TO ACCOMPANY THE COMMISSIONER
DURING AN INSPECTION FOR THE PURPOSE OF AIDING SUCH INSPECTION. A LABOR
UNION HAVING A COLLECTIVE BARGAINING RELATIONSHIP WITH THE EMPLOYER
SHALL BE CONSIDERED AN EMPLOYEE REPRESENTATIVE FOR THE PURPOSES OF THIS
SECTION. WHERE THERE IS NO DESIGNATED EMPLOYEE REPRESENTATIVE, THE
COMMISSIONER SHALL CONSULT WITH A REASONABLE NUMBER OF EMPLOYEES
CONCERNING MATTERS OF SAFETY AND HEALTH IN THE WORKPLACE.
4. THE AUTHORITY OF THE COMMISSIONER TO INSPECT PREMISES PURSUANT TO
AN EMPLOYEE COMPLAINT SHALL NOT BE LIMITED TO THE ALLEGED VIOLATION
CONTAINED IN SUCH COMPLAINT. THE COMMISSIONER MAY INSPECT ANY OTHER AREA
OF THE PREMISES IN WHICH HE OR SHE HAS REASON TO BELIEVE THAT A
VIOLATION OF THIS ARTICLE EXISTS.
5. NO EMPLOYEE OR DESIGNATED EMPLOYEE REPRESENTATIVE WHO ACCOMPANIES
THE COMMISSIONER ON AN INSPECTION SHALL SUFFER ANY REDUCTION IN WAGES AS
A RESULT OF HIS OR HER PARTICIPATION IN SUCH INSPECTION.
6. THE COMMISSIONER MAY, UPON HIS OR HER OWN INITIATIVE, CONDUCT AN
INSPECTION OF ANY PREMISES OCCUPIED BY AN EMPLOYER IF THE COMMISSIONER
S. 5081 7
HAS REASON TO BELIEVE THAT A VIOLATION OF THIS ARTICLE HAS OCCURRED OR
IF THE COMMISSIONER HAS A BASIS FOR SUCH INSPECTION.
7. NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW, WHEN A REQUEST FOR AN
INSPECTION HAS BEEN MADE IN A SITUATION WHERE THERE IS AN ALLEGATION OF
AN IMMINENT DANGER SUCH THAT AN EMPLOYEE WOULD BE SUBJECTING HIMSELF OR
HERSELF TO SERIOUS INJURY OR DEATH BECAUSE OF THE HAZARDOUS CONDITION IN
THE WORKPLACE, THE INSPECTION SHALL BE CARRIED OUT IMMEDIATELY.
8. IF THE COMMISSIONER DETERMINES THAT AN EMPLOYER HAS VIOLATED A
PROVISION OF THIS ARTICLE, OR A SAFETY OR HEALTH STANDARD OR REGULATION
PROMULGATED PURSUANT TO THIS ARTICLE, HE OR SHE SHALL, WITHIN SIX MONTHS
OF BECOMING AWARE OF SUCH VIOLATION, ISSUE TO THE EMPLOYER AN ORDER TO
COMPLY WHICH SHALL DESCRIBE PARTICULARLY THE NATURE OF THE VIOLATION,
INCLUDING A REFERENCE TO THE PROVISION OF THE SECTION, STANDARD, REGU-
LATION OR ORDER ALLEGED TO HAVE BEEN VIOLATED, FIX A REASONABLE TIME FOR
COMPLIANCE, AND ESTABLISH A PENALTY EQUIVALENT TO THE APPROPRIATE PENAL-
TIES REQUIRED PURSUANT TO SECTION 666 OF THE FEDERAL OCCUPATIONAL SAFETY
AND HEALTH ACT (29 USC CH. 15). AN EMPLOYER WHO FAILS TO CORRECT A NON-
SERIOUS VIOLATION BY THE TIME FIXED FOR COMPLIANCE MAY BE ASSESSED A
CIVIL PENALTY EQUIVALENT TO THE PENALTIES ASSESSED PURSUANT TO 29 USC
666 PER DAY UNTIL THE VIOLATION IS CORRECTED. AN EMPLOYER WHO FAILS TO
CORRECT A SERIOUS VIOLATION BY THE TIME FIXED FOR COMPLIANCE MAY BE
ASSESSED A CIVIL PENALTY EQUIVALENT TO THE PENALTIES ASSESSED PURSUANT
TO 29 USC 666 UNTIL THE VIOLATION IS CORRECTED. A SERIOUS VIOLATION
SHALL BE DEEMED TO EXIST IN A PLACE OF EMPLOYMENT IF THERE IS A SUBSTAN-
TIAL PROBABILITY THAT DEATH OR SERIOUS PHYSICAL HARM COULD RESULT FROM A
CONDITION WHICH EXISTS OR FROM ONE OR MORE PRACTICES, MEANS, METHODS,
OPERATIONS, OR PROCESSES WHICH HAVE BEEN ADOPTED OR ARE IN USE IN SUCH
PLACE OF EMPLOYMENT UNLESS THE EMPLOYER DID NOT, AND COULD NOT WITH THE
EXERCISE OF REASONABLE DILIGENCE, KNOW OF THE PRESENCE OF THE VIOLATION.
A NON-SERIOUS VIOLATION SHALL BE DEFINED AS ANY VIOLATION THAT DOES NOT
FALL UNDER THE DEFINITION OF SERIOUS VIOLATION.
9. WHERE THE COMMISSIONER ISSUES TO AN EMPLOYER AN ORDER TO COMPLY,
THE EMPLOYER SHALL POST SUCH ORDER OR A COPY THEREOF IN A CONSPICUOUS
PLACE AT OR NEAR EACH PLACE OF VIOLATION CITED IN THE ORDER. THE ORDER
SHALL BE PLACED WHERE IT IS CLEARLY VISIBLE TO AFFECTED EMPLOYEES AND
COPIES SHALL BE PROVIDED TO EMPLOYEES, ON REQUEST, AND TO THE DESIGNATED
REPRESENTATIVES OF ALL AFFECTED EMPLOYEES. THE COMMISSIONER SHALL MAKE
SUCH ORDER AVAILABLE TO EMPLOYEE REPRESENTATIVES AND PROVIDE A PLAIN
ENGLISH SUMMARY OF THE ORDER TO ALL WORKERS.
10. ANY EMPLOYER OR OTHER PARTY AFFECTED BY A DETERMINATION OF THE
COMMISSIONER ISSUED PURSUANT TO THIS SECTION, INCLUDING AFFECTED EMPLOY-
EES AND THEIR DESIGNATED REPRESENTATIVES, MAY PETITION THE INDUSTRIAL
BOARD OF APPEALS FOR REVIEW OF SUCH DETERMINATION IN ACCORDANCE WITH
SECTION ONE HUNDRED ONE OF THIS CHAPTER. JUDICIAL REVIEW OF THE DECISION
OF THE INDUSTRIAL BOARD OF APPEALS MAY BE OBTAINED BY ANY PARTY AFFECTED
BY SUCH DECISION BY COMMENCING A PROCEEDING PURSUANT TO ARTICLE SEVEN-
TY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES WITHIN SIXTY DAYS AFTER
SUCH DECISION IS ISSUED. AN APPEAL OF ANY VIOLATION CLASSIFIED AND CITED
AS SERIOUS, WILLFUL, REPEATED SERIOUS VIOLATION, OR FAILURE TO ABATE A
SERIOUS VIOLATION SHALL NOT STAY ABATEMENT DATES AND REQUIREMENTS.
EMPLOYEES AFFECTED BY THE VIOLATION COVERED BY SUCH DETERMINATION SHALL
BE GRANTED STATUS AS PARTIES TO: PARTICIPATE IN THE BOARD'S PROCEEDINGS;
REVIEW ANY ASPECT OF THE COMMISSIONER'S DETERMINATIONS; AND REQUEST THE
ISSUANCE OF SUBPOENAS TO COMPEL THE ATTENDANCE OF WITNESSES, PRODUCTION
OF DOCUMENTS, PERMISSION TO ENTER UPON LAND, INTERROGATORIES AND DEPOSI-
TIONS FROM AFFECTED EMPLOYERS AND FROM THE DEPARTMENT PURSUANT TO
S. 5081 8
SECTION ONE HUNDRED OF THIS CHAPTER. THE BOARD SHALL GRANT SUCH REQUESTS
EXCEPT THAT REQUESTS FOR DEPOSITIONS SHALL BE GRANTED BY THE BOARD UPON
A REQUEST STATING GOOD AND JUST REASONS.
11. IF THE TIME FOR COMPLIANCE WITH AN ORDER OF THE COMMISSIONER
ISSUED PURSUANT TO THIS SECTION HAS ELAPSED AND THE EMPLOYER HAS NOT
COMPLIED WITH THE PROVISIONS OF THE ORDER, THE COMMISSIONER SHALL SEEK
JUDICIAL ENFORCEMENT OF SUCH ORDER BY COMMENCING A PROCEEDING PURSUANT
TO ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES.
12. (A) THE STATE SUPREME COURT SHALL HAVE JURISDICTION, UPON PETITION
OF THE COMMISSIONER, PURSUANT TO THE CIVIL PRACTICE LAW AND RULES TO
RESTRAIN ANY VIOLATIONS, CONDITIONS OR PRACTICES PROHIBITED BY THIS
ARTICLE IN ANY EMPLOYER COVERED BY THIS ARTICLE WHICH ARE SUCH THAT A
DANGER EXISTS WHICH COULD REASONABLY BE EXPECTED TO CAUSE DEATH OR SERI-
OUS PHYSICAL HARM IMMEDIATELY OR BEFORE THE IMMINENCE OF SUCH DANGER CAN
BE ELIMINATED THROUGH THE ABATEMENT PROCEDURES OTHERWISE PROVIDED FOR BY
THIS ARTICLE. SUCH PROCEEDING SHALL BE BROUGHT IN THE COUNTY IN WHICH
THE VIOLATION IS ALLEGED TO EXIST. ANY ORDER ISSUED UNDER THIS SECTION
MAY REQUIRE SUCH STEPS TO BE TAKEN AS MAY BE NECESSARY TO AVOID, CORRECT
OR REMOVE SUCH IMMINENT DANGER AND PROHIBIT THE EMPLOYMENT OR PRESENCE
OF ANY INDIVIDUAL IN LOCATIONS OR UNDER CONDITIONS WHERE SUCH IMMINENT
DANGER EXISTS, EXCEPT INDIVIDUALS WHOSE PRESENCE IS NECESSARY TO AVOID,
CORRECT, OR REMOVE SUCH IMMINENT DANGER OR TO MAINTAIN THE CAPACITY OF A
CONTINUOUS PROCESS OPERATION TO RESUME NORMAL OPERATIONS WITHOUT A
COMPLETE CESSATION OF OPERATIONS, OR WHERE A CESSATION OF OPERATIONS IS
NECESSARY, TO PERMIT SUCH TO BE ACCOMPLISHED IN A SAFE AND ORDERLY
MANNER. THE EMPLOYER MAY CONTEST SUCH ORDER PURSUANT TO THE CIVIL PRAC-
TICE LAW AND RULES.
(B) WHENEVER AND AS SOON AS AN INSPECTOR CONCLUDES THAT CONDITIONS OR
PRACTICES DESCRIBED IN PARAGRAPH (A) OF THIS SUBDIVISION EXIST IN ANY
PLACE OF EMPLOYMENT COVERED BY THIS ARTICLE, THE INSPECTOR SHALL INFORM
THE AFFECTED EMPLOYEES AND EMPLOYERS OF THE DANGER AND OF THE RECOMMEN-
DATION TO THE COMMISSIONER THAT RELIEF BE SOUGHT.
(C) IF THE COMMISSIONER FAILS TO SEEK RELIEF UNDER THIS SUBDIVISION
WITHIN FORTY-EIGHT HOURS OF BEING NOTIFIED OF SUCH CONDITION, ANY
EMPLOYEE WHO MAY BE INJURED BY REASON OF SUCH FAILURE, OR THE AUTHORIZED
EMPLOYEE REPRESENTATIVE OF SUCH EMPLOYEE, MAY SEEK INJUNCTIVE RELIEF AS
PROVIDED IN PARAGRAPH (A) OF THIS SUBDIVISION.
13. THE COMMISSIONER SHALL PROVIDE A REPORT TO THE LEGISLATURE ONE
YEAR AFTER THE EFFECTIVE DATE OF THIS SECTION AND ANNUALLY THEREAFTER.
THE REPORT SHALL INCLUDE ALL RELEVANT INFORMATION REGARDING IMPLEMENTA-
TION AND ENFORCEMENT OF THIS ARTICLE, INCLUDING, BUT NOT LIMITED TO, THE
NUMBER OF CLAIMS FILED WITH THE COMMISSIONER UNDER THIS ARTICLE AND THE
NUMBER OF INVESTIGATIONS UNDERTAKEN AND ENFORCEMENT ACTIONS INITIATED,
PER EMPLOYER AND PER WORKSITE.
14. IF A PARTICULAR WORKSITE OR EMPLOYER IS FOUND TO HAVE AN ANNUAL
EMPLOYEE INJURY RATE AT LEAST ONE AND ONE-HALF TIMES AS HIGH AS THE
WAREHOUSING INDUSTRY'S AVERAGE ANNUAL INJURY RATE, THE COMMISSIONER
SHALL CONDUCT AN INVESTIGATION OF THE FACILITY TO ASSESS WHETHER THE
EMPLOYER IS ADEQUATELY PROTECTING WORKERS FROM MUSCULOSKELETAL INJURIES
AND DISORDERS ACCORDING TO SECTION SEVEN HUNDRED NINETY-ONE OF THIS
ARTICLE AND OF VIOLATIONS PURSUANT TO THIS ARTICLE.
15. THE COMMISSIONER SHALL HAVE THE AUTHORITY TO ADOPT RULES AND REGU-
LATIONS RELATING TO THE PROCEDURES FOR AN EMPLOYEE TO MAKE A COMPLAINT
ALLEGING A VIOLATION OF THIS ARTICLE.
16. IN ANY SUCCESSFUL ACTION BROUGHT BY THE COMMISSIONER TO ENFORCE
THIS ARTICLE, THE COURT MAY GRANT INJUNCTIVE RELIEF IN ORDER TO OBTAIN
S. 5081 9
COMPLIANCE WITH THIS ARTICLE AND SHALL AWARD COSTS AND REASONABLE ATTOR-
NEY'S FEES.
§ 795. PRIVATE RIGHT OF ACTION. A CURRENT OR FORMER EMPLOYEE OR HIS OR
HER REPRESENTATIVE MAY BRING AN ACTION FOR INJUNCTIVE RELIEF TO OBTAIN
COMPLIANCE WITH THIS ARTICLE AND MAY, UPON PREVAILING IN THE ACTION,
RECOVER COSTS AND REASONABLE ATTORNEY'S FEES IN SUCH ACTION. IN ANY
ACTION INVOLVING A QUOTA THAT PREVENTED THE COMPLIANCE WITH APPLICABLE
REGULATIONS ON WORKPLACE SAFETY AND HEALTH OR MEAL OR REST BREAK
REQUIREMENTS, THE INJUNCTIVE RELIEF SHALL BE LIMITED TO SUSPENSION OF
THE QUOTA AND RESTITUTION AND INJUNCTIVE RELIEF TO ADDRESS ANY RETALI-
ATION OR OTHER ADVERSE ACTION TAKEN BY THE EMPLOYER IN RELATION TO THE
COMPLAINT OR ITS ENFORCEMENT. IN ANY ACTION INVOLVING A RETALIATION IN
VIOLATION OF SECTION SEVEN HUNDRED NINETY-TWO OF THIS ARTICLE, IN ADDI-
TION TO THE RELIEF AUTHORIZED ABOVE, A PREVAILING CURRENT OR FORMER
EMPLOYEE OR HIS OR HER REPRESENTATIVE SHALL BE AWARDED DAMAGES EQUAL TO
THE GREATER OF TEN THOUSAND DOLLARS OR THREE TIMES THE ACTUAL DAMAGES,
INCLUDING, BUT NOT LIMITED TO, UNPAID WAGES AND BENEFITS.
§ 796. RECORDS. ANY RECORD COLLECTED BY THE STATE IN ANY INVESTIGATION
UNDER THIS ARTICLE SHALL BE MADE PUBLIC, WITHOUT ANY RESTRICTION REGARD-
ING CONFIDENTIALITY, OTHER THAN A RESTRICTION ON THE RELEASE OF
PERSONALLY IDENTIFIABLE INFORMATION FOR INDIVIDUAL NON-SUPERVISORY
EMPLOYEES. ALL RECORDS MAINTAINED BY THE EMPLOYER UNDER THIS ARTICLE
SHALL BE MADE FREELY AVAILABLE TO EMPLOYEES AND THEIR REPRESENTATIVES ON
REQUEST, WITHIN TWO BUSINESS DAYS OF SUCH REQUEST, AT NO COST TO EMPLOY-
EES OR THEIR REPRESENTATIVES.
§ 797. OTHER POWERS. THE ATTORNEY GENERAL, EITHER UPON HIS OR HER OWN
COMPLAINT OR THE COMPLAINT OF ANY PERSON ACTING FOR THEMSELVES OR THE
GENERAL PUBLIC, HAS THE AUTHORITY TO PROSECUTE ACTIONS, EITHER CIVIL OR
CRIMINAL, FOR VIOLATIONS OF THIS ARTICLE, OR TO ENFORCE THE PROVISIONS
THEREOF INDEPENDENTLY AND WITHOUT SPECIFIC DIRECTION OF THE COMMISSION-
ER.
§ 4. 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.
§ 5. This act shall take effect on the sixtieth day after it shall
have become a law.
