S T A T E O F N E W Y O R K
________________________________________________________________________
391
2009-2010 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2009
___________
Introduced by M. of A. JOHN -- read once and referred to the Committee
on Labor
AN ACT to amend the labor law, in relation to requiring public employers
to develop and implement programs to prevent workplace violence
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative findings. The legislature finds and declares
that workplace assaults and homicides are a serious public health prob-
lem that demands the attention of the state of New York. During the last
decade, homicide was the third leading cause of death for all workers
and the leading cause of occupational death for women workers. Workplace
violence presents a serious occupational safety hazard for workers, but
many employers and workers may be unaware of the risk. Moreover, the
hazard of workplace violence is not currently addressed by any specific
federal or state statute and regulation. It is critical to the mainte-
nance of a productive workforce that employers and workers evaluate
their workplaces to determine the risk of violence and to develop, and
implement programs to minimize the hazard. Experience has shown that
when employers evaluate the safety and health hazards in their workplac-
es and implement employee protection programs, the incidence of work-
place injuries is reduced. The legislature, therefore, further finds and
declares that the public health, safety and welfare would be advanced by
enactment of a law to require that employers develop and implement work-
place violence protection programs designed to minimize the danger to
employees of workplace violence.
S 2. The labor law is amended by adding a new section 27-c to read as
follows:
S 27-C. DUTY OF PUBLIC EMPLOYERS TO DEVELOP AND IMPLEMENT PROGRAMS TO
PREVENT WORKPLACE VIOLENCE. 1. PURPOSE. THE PURPOSE OF THIS SECTION IS
TO ENSURE THAT THE RISK OF WORKPLACE ASSAULTS AND HOMICIDES IS EVALUATED
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02525-01-9
A. 391 2
BY AFFECTED PUBLIC EMPLOYERS AND THEIR EMPLOYEES AND THAT SUCH EMPLOYERS
DESIGN AND IMPLEMENT WORKPLACE VIOLENCE PROTECTION PROGRAMS TO PREVENT
AND MINIMIZE THE HAZARD OF WORKPLACE VIOLENCE TO PUBLIC EMPLOYEES.
2. DEFINITIONS. FOR THE PURPOSES OF THIS SECTION:
A. "EMPLOYER" MEANS: (1) THE STATE; (2) A POLITICAL SUBDIVISION OF THE
STATE, PROVIDED, HOWEVER THAT THIS SUBDIVISION SHALL NOT MEAN ANY
EMPLOYER AS DEFINED IN SECTION TWENTY-EIGHT HUNDRED ONE-A OF THE EDUCA-
TION LAW; AND (3) A PUBLIC AUTHORITY, A PUBLIC BENEFIT CORPORATION, OR
ANY OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY THEREOF.
B. "EMPLOYEE" MEANS A PUBLIC EMPLOYEE WORKING FOR AN EMPLOYER.
C. "WORKPLACE" MEANS ANY LOCATION AWAY FROM AN EMPLOYEE'S DOMICILE,
PERMANENT OR TEMPORARY, WHERE AN EMPLOYEE PERFORMS ANY WORK-RELATED DUTY
IN THE COURSE OF HIS OR HER EMPLOYMENT BY AN EMPLOYER.
D. "SUPERVISOR" MEANS ANY PERSON WITHIN AN EMPLOYER'S ORGANIZATION WHO
HAS THE AUTHORITY TO DIRECT AND CONTROL THE WORK PERFORMANCE OF AN
EMPLOYEE, OR WHO HAS THE AUTHORITY TO TAKE CORRECTIVE ACTION REGARDING
THE VIOLATION OF A LAW, RULE OR REGULATION TO WHICH AN EMPLOYEE SUBMITS
WRITTEN NOTICE.
E. "RETALIATORY ACTION" MEANS THE DISCHARGE, SUSPENSION, DEMOTION,
PENALIZATION, OR DISCRIMINATION AGAINST ANY EMPLOYEE, OR OTHER ADVERSE
EMPLOYMENT ACTION TAKEN AGAINST AN EMPLOYEE IN THE TERMS AND CONDITIONS
OF EMPLOYMENT.
3. RISK EVALUATION AND DETERMINATION. EVERY EMPLOYER SHALL EVALUATE
ITS WORKPLACE OR WORKPLACES TO DETERMINE THE PRESENCE OF FACTORS OR
SITUATIONS IN SUCH WORKPLACE OR WORKPLACES THAT MIGHT PLACE EMPLOYEES AT
RISK OF OCCUPATIONAL ASSAULTS AND HOMICIDES. EXAMPLES OF SUCH FACTORS
SHALL INCLUDE, BUT NOT LIMITED TO:
A. WORKING IN PUBLIC SETTINGS (E.G., SOCIAL SERVICES OR OTHER GOVERN-
MENTAL WORKERS, POLICE OFFICERS, FIREFIGHTERS, TEACHERS, PUBLIC TRANS-
PORTATION DRIVERS, HEALTH CARE WORKERS, AND SERVICE WORKERS);
B. WORKING LATE NIGHT OR EARLY MORNING HOURS;
C. EXCHANGING MONEY WITH THE PUBLIC;
D. WORKING ALONE OR IN SMALL NUMBERS;
E. UNCONTROLLED ACCESS TO THE WORKPLACE; AND
F. AREAS OF PREVIOUS SECURITY PROBLEMS.
4. WRITTEN WORKPLACE VIOLENCE PREVENTION PROGRAM. EVERY EMPLOYER WITH
AT LEAST TWENTY FULL TIME PERMANENT EMPLOYEES SHALL DEVELOP AND IMPLE-
MENT A WRITTEN WORKPLACE VIOLENCE PREVENTION PROGRAM FOR ITS WORKPLACE
OR WORKPLACES THAT INCLUDES THE FOLLOWING:
A. A LIST OF THE RISK FACTORS IDENTIFIED IN SUBDIVISION THREE OF THIS
SECTION THAT ARE PRESENT IN SUCH WORKPLACE OR WORKPLACES;
B. THE METHODS THE EMPLOYER WILL USE TO PREVENT INCIDENTS OF OCCUPA-
TIONAL ASSAULTS AND HOMICIDES AT SUCH WORKPLACE OR WORKPLACES, INCLUDING
BUT NOT LIMITED TO THE FOLLOWING:
(1) MAKING HIGH-RISK AREAS MORE VISIBLE TO MORE PEOPLE;
(2) INSTALLING GOOD EXTERNAL LIGHTING;
(3) USING DROP SAFES OR OTHER METHODS TO MINIMIZE CASH ON HAND;
(4) POSTING SIGNS STATING THAT LIMITED CASH IS ON HAND;
(5) INCREASING THE NUMBER OF STAFF ON DUTY;
(6) PROVIDING TRAINING IN CONFLICT RESOLUTION AND NONVIOLENT SELF-DE-
FENSE RESPONSES; AND
(7) ESTABLISHING AND IMPLEMENTING REPORTING SYSTEMS FOR INCIDENTS OF
AGGRESSIVE BEHAVIOR.
5. EMPLOYEE INFORMATION AND TRAINING. A. EVERY EMPLOYER WITH AT LEAST
TWENTY PERMANENT FULL TIME EMPLOYEES SHALL MAKE THE WRITTEN WORKPLACE
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VIOLENCE PREVENTION PROGRAM AVAILABLE, UPON REQUEST, TO ITS EMPLOYEES,
THEIR DESIGNATED REPRESENTATIVES AND THE DEPARTMENT.
B. EVERY EMPLOYER SHALL PROVIDE ITS EMPLOYEES WITH THE FOLLOWING
INFORMATION AND TRAINING ON THE RISKS OF OCCUPATIONAL ASSAULTS AND HOMI-
CIDES IN THEIR WORKPLACE OR WORKPLACES AT THE TIME OF THEIR INITIAL
ASSIGNMENT AND ANNUALLY THEREAFTER:
(1) EMPLOYEES SHALL BE INFORMED OF THE REQUIREMENTS OF THIS SECTION,
THE RISK FACTORS IN THEIR WORKPLACE OR WORKPLACES, AND THE LOCATION AND
AVAILABILITY OF THE WRITTEN WORKPLACE VIOLENCE PREVENTION PROGRAM
REQUIRED BY THIS SECTION; AND
(2) EMPLOYEE TRAINING SHALL INCLUDE AT LEAST: (A) THE MEASURES EMPLOY-
EES CAN TAKE TO PROTECT THEMSELVES FROM SUCH RISKS, INCLUDING SPECIFIC
PROCEDURES THE EMPLOYER HAS IMPLEMENTED TO PROTECT EMPLOYEES, SUCH AS
APPROPRIATE WORK PRACTICES, EMERGENCY PROCEDURES, USE OF SECURITY ALARMS
AND OTHER DEVICES, AND (B) THE DETAILS OF THE WRITTEN WORKPLACE VIOLENCE
PREVENTION PROGRAM DEVELOPED BY THE EMPLOYER.
6. APPLICATION. A. ANY EMPLOYEE OR REPRESENTATIVE OF EMPLOYEES WHO
BELIEVES THAT A SERIOUS VIOLATION OF A WORKPLACE VIOLENCE PROTECTION
PROGRAM EXISTS OR THAT AN IMMINENT DANGER EXISTS SHALL BRING SUCH MATTER
TO THE ATTENTION OF A SUPERVISOR IN THE FORM OF A WRITTEN NOTICE AND
SHALL AFFORD THE EMPLOYER A REASONABLE OPPORTUNITY TO CORRECT SUCH
ACTIVITY, POLICY OR PRACTICE. THIS REFERRAL SHALL NOT APPLY WHERE IMMI-
NENT DANGER OR THREAT EXIST TO THE SAFETY OF A SPECIFIC EMPLOYEE OR TO
THE GENERAL HEALTH OF A SPECIFIC PATIENT AND THE EMPLOYEE REASONABLY
BELIEVES IN GOOD FAITH THAT REPORTING TO A SUPERVISOR WOULD NOT RESULT
IN CORRECTIVE ACTION.
B. IF FOLLOWING A REFERRAL OF SUCH MATTER TO THE EMPLOYEE'S SUPERVI-
SOR'S ATTENTION AND AFTER A REASONABLE OPPORTUNITY TO CORRECT SUCH
ACTIVITY, POLICY OR PRACTICE THE MATTER HAS NOT BEEN RESOLVED AND THE
EMPLOYEE OR REPRESENTATIVE OF EMPLOYEES STILL BELIEVES THAT A VIOLATION
OF A WORKPLACE VIOLENCE PREVENTION PROGRAM REMAINS, OR THAT AN IMMINENT
DANGER EXISTS, SUCH EMPLOYEE OR REPRESENTATIVE OF EMPLOYEES MAY REQUEST
FOR AN INSPECTION BY GIVING NOTICE TO THE COMMISSIONER OF SUCH VIOLATION
OR DANGER. SUCH NOTICE AND REQUEST SHALL BE IN WRITING, SHALL SET FORTH
WITH REASONABLE PARTICULARITY THE GROUNDS FOR THE NOTICE, SHALL BE
SIGNED BY SUCH EMPLOYEE OR REPRESENTATIVE OF EMPLOYEES, AND A COPY SHALL
BE PROVIDED BY THE COMMISSIONER TO THE EMPLOYER OR THE PERSON IN CHARGE
NO LATER THAN THE TIME OF INSPECTION, EXCEPT THAT ON THE REQUEST OF THE
PERSON GIVING SUCH NOTICE, SUCH PERSON'S NAME AND THE NAMES OF INDIVID-
UAL EMPLOYEES OR REPRESENTATIVES OF EMPLOYEES SHALL BE WITHHELD. SUCH
INSPECTION SHALL BE MADE FORTHWITH.
C. A REPRESENTATIVE OF THE EMPLOYER AND AN AUTHORIZED EMPLOYEE REPRE-
SENTATIVE SHALL BE GIVEN THE OPPORTUNITY TO ACCOMPANY THE COMMISSIONER
DURING AN INSPECTION FOR THE PURPOSE OF AIDING SUCH INSPECTION. WHERE
THERE IS NO AUTHORIZED EMPLOYEE REPRESENTATIVE, THE COMMISSIONER SHALL
CONSULT WITH A REASONABLE NUMBER OF EMPLOYEES CONCERNING MATTERS OF
SAFETY IN THE WORKPLACE.
D. THE AUTHORITY OF THE COMMISSIONER TO INSPECT A PREMISES PURSUANT TO
SUCH 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 SERIOUS
VIOLATION OF THIS SECTION EXISTS.
E. NO EMPLOYER SHALL TAKE RETALIATORY ACTION AGAINST ANY EMPLOYEE
BECAUSE THE EMPLOYEE DOES ANY OF THE FOLLOWING:
(1) MAKES AN APPLICATION PURSUANT TO PARAGRAPH A OF THIS SUBDIVISION;
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(2) REQUESTS AN INSPECTION AS AUTHORIZED IN PARAGRAPH B OF THIS SUBDI-
VISION;
(3) ACCOMPANIES THE COMMISSIONER AS AUTHORIZED IN PARAGRAPH C OF THIS
SUBDIVISION;
F. THE COMMISSIONER MAY, UPON HIS OR HER OWN INITIATIVE, CONDUCT AN
INSPECTION OF ANY PREMISES OCCUPIED BY AN EMPLOYER IF HE OR SHE HAS
REASON TO BELIEVE THAT A VIOLATION OF THIS SECTION HAS OCCURRED OR IF HE
OR SHE HAS A GENERAL ADMINISTRATIVE PLAN FOR THE ENFORCEMENT OF THIS
SECTION, INCLUDING A GENERAL SCHEDULE OF INSPECTIONS, WHICH PROVIDE A
RATIONAL ADMINISTRATIVE BASIS FOR SUCH INSPECTING. WITHIN ONE HUNDRED
TWENTY DAYS OF THE EFFECTIVE DATE OF THIS PARAGRAPH THE COMMISSIONER
SHALL ADOPT RULES AND REGULATIONS IMPLEMENTING THE PROVISIONS OF THIS
SECTION.
G. ANY INFORMATION OBTAINED BY THE COMMISSIONER PURSUANT TO THIS
SUBDIVISION SHALL BE OBTAINED WITH A MINIMUM BURDEN UPON THE EMPLOYERS.
H. 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 GIVEN
THE HIGHEST PRIORITY BY THE DEPARTMENT AND SHALL BE CARRIED OUT IMME-
DIATELY.
S 3. The provisions of this act shall not diminish the rights of
employees pursuant to any law, rule, regulation or collective bargaining
agreement.
S 4. This act shall take effect on the one hundred eightieth day after
it shall have become a law.