S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5081
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             February 22, 2023
                                ___________
 
 Introduced  by  Sen.  RAMOS  -- read twice and ordered printed, and when
   printed to be committed to the Committee on Labor
 
 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 the most recent  data  (2020)  released  by  the
 Bureau of Labor Statistics, the warehouse industry itself reports a rate
 of  serious work-related injuries involving lost time or restricted duty
 (4.0 cases/100 full-time workers) that is more than  twice  the  average
 injury rates for all private industry (1.7 cases/100 full-time workers).
 The most common types of work-related serious injury reported by employ-
 ers  in  the  warehouse sector are musculoskeletal injuries, which often
 require workers to miss work and can force workers  permanently  out  of
 the job and even out of the workforce.
   (b)  Warehouse  companies  often require workers to perform fast paced
 manual material handling tasks. These involve  well-known  risk  factors
 for  serious  injury  such  as rapid pace, repetitive forceful exertions
 like lifting heavy packages, and awkward postures like twisting/bending,
 and combinations thereof that are likely to cause musculoskeletal  inju-
 ries.  Scientific evidence shows that effective ergonomic interventions,
 such  as  reducing the pace, package weights and stressful postures, can
 lower the incidence and severity of work-related  musculoskeletal  inju-
 ries.  The research is clear that the most effective method for reducing
 or eliminating these risk factors is to implement an ergonomics  program
 that  includes well-informed analysis of the worksite, implementation of
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD08912-01-3
              

 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.

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5081--A
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             February 22, 2023
                                ___________
 
 Introduced  by  Sens.  RAMOS,  HOYLMAN-SIGAL,  SKOUFIS -- 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
 
 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 the most recent  data  (2020)  released  by  the
 Bureau of Labor Statistics, the warehouse industry itself reports a rate
 of  serious work-related injuries involving lost time or restricted duty
 (4.0 cases/100 full-time workers) that is more than  twice  the  average
 injury rates for all private industry (1.7 cases/100 full-time workers).
 The most common types of work-related serious injury reported by employ-
 ers  in  the  warehouse sector are musculoskeletal injuries, which often
 require workers to miss work and can force workers  permanently  out  of
 the job and even out of the workforce.
   (b)  Warehouse  companies  often require workers to perform fast paced
 manual material handling tasks. These involve  well-known  risk  factors
 for  serious  injury  such  as rapid pace, repetitive forceful exertions
 like lifting heavy packages, and awkward postures like twisting/bending,
 and combinations thereof that are likely to cause musculoskeletal  inju-
 ries.  Scientific evidence shows that effective ergonomic interventions,
 such  as  reducing the pace, package weights and stressful postures, can
 lower the incidence and severity of work-related  musculoskeletal  inju-
 ries.  The research is clear that the most effective method for reducing
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD08912-02-3
              

 S. 5081--A                          2
 
 or eliminating these risk factors is to implement an ergonomics  program
 that  includes well-informed analysis of the worksite, implementation of
 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. 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
 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
 S. 5081--A                          3
 
 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.
   (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;
 S. 5081--A                          4
 
   (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.
   (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.
 S. 5081--A                          5
 
   (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 the sixtieth day after it shall
 have become a law; provided, however, that if chapter 722 of the laws of
 2022 shall not have taken effect on or before such  date  then  sections
 three and four of this act shall take effect on the same date and in the
 same manner as such chapter of the laws of 2022 takes effect.