STATE OF NEW YORK ________________________________________________________________________ 5081--A 2023-2024 Regular Sessions IN SENATE 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: 1 Section 1. This act shall be known and may be cited as the "warehouse 2 worker injury reduction program". 3 § 2. Legislative findings. The legislature finds and declares that: 4 (a) Workplace injuries can take a terrible toll on workers, their 5 families and their communities, and can create substantial costs for 6 employers. According to the most recent data (2020) released by the 7 Bureau of Labor Statistics, the warehouse industry itself reports a rate 8 of serious work-related injuries involving lost time or restricted duty 9 (4.0 cases/100 full-time workers) that is more than twice the average 10 injury rates for all private industry (1.7 cases/100 full-time workers). 11 The most common types of work-related serious injury reported by employ- 12 ers in the warehouse sector are musculoskeletal injuries, which often 13 require workers to miss work and can force workers permanently out of 14 the job and even out of the workforce. 15 (b) Warehouse companies often require workers to perform fast paced 16 manual material handling tasks. These involve well-known risk factors 17 for serious injury such as rapid pace, repetitive forceful exertions 18 like lifting heavy packages, and awkward postures like twisting/bending, 19 and combinations thereof that are likely to cause musculoskeletal inju- 20 ries. Scientific evidence shows that effective ergonomic interventions, 21 such as reducing the pace, package weights and stressful postures, can 22 lower the incidence and severity of work-related musculoskeletal inju- 23 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 1 or eliminating these risk factors is to implement an ergonomics program 2 that includes well-informed analysis of the worksite, implementation of 3 solutions to reduce the dangerous risk factors, professionally competent 4 medical management, effective worker training, and meaningful involve- 5 ment by workers and their representatives in all aspects of the program. 6 § 3. Section 780 of the labor law is amended by adding two new subdi- 7 visions 8 and 9 to read as follows: 8 8. "Musculoskeletal injuries and disorders" means work related inju- 9 ries, or disorders, of the muscles, nerves, tendons, ligaments, joints, 10 cartilage of the upper and lower limbs, neck and lower back (including 11 spinal discs) that: (a) are caused by sudden or sustained physical 12 exertion; or (b) are not the result of any instantaneous non-exertion 13 event, such as slips, trips, or falls. 14 9. "Qualified ergonomist" means an ergonomist who is able to demon- 15 strate proficiency in the core, minimum competencies of ergonomics and 16 injury prevention, as defined by the commissioner. Until the commission- 17 er defines such competencies and approves ergonomists in accordance with 18 such competencies, consultants approved by the commissioner under 12 19 NYCRR 59 and 60 with a credential as a certified safety professional or 20 certified industrial hygienist shall be deemed to qualify as an ergonom- 21 ist. 22 § 4. Section 786 of the labor law is amended by adding a new subdivi- 23 sion 3 to read as follows: 24 3. Making a complaint related to section seven hundred eighty-nine of 25 this article. 26 § 5. The labor law is amended by adding a new section 789 to read as 27 follows: 28 § 789. Injury reduction program. 1. Every employer subject to this 29 section shall establish and implement an injury reduction program 30 designed to identify and minimize the risks of musculoskeletal injuries 31 and disorders among workers involved in performing manual materials 32 handling tasks. The program shall include: worksite evaluation; control 33 of exposures, including pace, which have caused or have the potential to 34 cause musculoskeletal injuries and disorders; employee training; on-site 35 medical and first aid practices; and employee involvement. 36 2. The employer shall ensure that each job, process, or operation of 37 work activity covered by this section or a representative number of such 38 jobs, processes, or operations of identical work activities shall have a 39 written work site evaluation by a qualified ergonomist for risk factors 40 which have or are likely to cause musculoskeletal injuries and disor- 41 ders. Such risk factors shall include, but are not limited to, rapid 42 pace, forceful exertions, repetitive motions, twisting, bending, and 43 awkward postures and combinations thereof that had caused or are likely 44 to cause musculoskeletal injuries and disorders. 45 (a) Any worksite evaluations shall also determine whether any employ- 46 ees exposed to such risk factors are subject to either personnel action 47 with the potential for adverse action, or adverse action or termination 48 themselves, arising in whole or in part from an employer's use of quotas 49 to determine employee assignments. 50 (b) All such worksite evaluations shall obtain recommendations from 51 workers who regularly perform those jobs on the possible risk factors 52 and any workplace changes that can reduce such risk factors. 53 (c) Copies of such worksite risk factor evaluations shall be made 54 available to workers and their representatives upon request, at no cost, 55 within one business day of such request. Workers and their represen- 56 tatives shall be notified in writing of the results of the worksite
S. 5081--A 3 1 evaluation. Employers shall maintain accessible copies of such evalu- 2 ations at locations within the warehouse and shall make such copies 3 readily available to workers. 4 (d) An initial worksite evaluation shall be conducted within three 5 months after the effective date of this article. Worksite evaluations 6 shall be reviewed and updated at least annually thereafter. A new analy- 7 sis of risk factors shall be conducted in accordance with the provisions 8 of subdivision one of this section whenever a new job, process, or oper- 9 ation is introduced which could increase the risk factors for musculosk- 10 eletal injuries and disorders. Such new analysis shall be conducted 11 within thirty days of the creation or change of a job, process or opera- 12 tion. 13 (e) Within three months of the effective date of this article, the 14 commissioner shall form a task force chaired by a recognized academic 15 leader in the field of ergonomics in New York state and including, but 16 not limited to, representatives from the warehouse workforce, labor 17 organizations active in the warehousing industry, and employers in the 18 industry, to recommend the core competencies required for the certif- 19 ication of qualified ergonomists. Within six months of the effective 20 date of this article, the commissioner shall adopt a standard and proc- 21 ess for certifying qualified ergonomists based on the recommendations of 22 the task force. 23 3. The employer shall correct in a timely manner any risk factors 24 identified as having caused or being likely to cause musculoskeletal 25 injuries and disorders. For any corrections which require more than 26 thirty days to complete, the employer shall revise, as needed, and 27 provide a schedule for such proposed corrections. Such schedule shall be 28 included in the evaluations provided to workers and their represen- 29 tatives. 30 (a) Where the employer demonstrates that it is unable to eliminate 31 identified risk factors, the employer shall minimize the exposures to 32 the extent feasible. 33 (b) In reducing risk factors, the employer shall consider: 34 (i) engineering controls and redesigning work stations to change 35 shelving heights, provide adjustable fixtures or tool redesign; and 36 (ii) administrative controls, such as job rotation which reduces the 37 exposure to risk factors, reduced work pacing or additional work breaks. 38 (c) Employers shall maintain records of steps taken to eliminate or 39 reduce risk factors and shall make copies available to workers and their 40 representatives upon request. 41 4. All employers covered by this section shall provide injury 42 reduction training to all employees involved in performing manual mate- 43 rials handling jobs and tasks at the warehouse during normal work hours 44 and without suffering a loss of pay. Such training shall be provided in 45 a language and vocabulary that the workers understand and shall be 46 repeated annually. The training shall also be provided to the workers' 47 supervisors. Such training shall be in addition to the training required 48 under section twenty-seven-d of this chapter and shall include: 49 (a) The early symptoms of musculoskeletal injuries and disorders and 50 the importance of early detection; 51 (b) Musculoskeletal injury and disorder risk factors and exposures at 52 work, including the hazards posed by excessive rates of work; 53 (c) Methods to reduce risk factors for musculoskeletal injuries and 54 disorders, including both engineering controls and administrative 55 controls, such as limitations on work pace and increased scheduled and 56 unscheduled breaks;
S. 5081--A 4 1 (d) The employer's program to identify risk factors as required under 2 this section and prevent musculoskeletal injuries and disorders, includ- 3 ing the summary protocols for medical treatment approved by the employ- 4 er's medical consultant; 5 (e) The rights and function of workplace safety committees established 6 under section twenty-seven-d of this chapter and the rights of employees 7 to report any risk factors, other hazards, injuries or health and safety 8 concerns; and 9 (f) Training on the unlawful retaliation of any provision in this 10 section, including the disciplinary actions required when supervisors or 11 managers violate the law or policy, as well as the employer's policy 12 prohibiting any workplace discrimination. 13 5. Any on-site medical office or first aid station that sees workers 14 in warehouses covered by this section with symptoms of musculoskeletal 15 injuries and disorders shall be staffed with medical professionals oper- 16 ating within their legal scope of practice. Nothing in this section 17 shall infringe on the rights of workers under the opening paragraph of 18 subdivision (a) of section thirteen of the workers' compensation law to 19 either select an authorized physician to treat employees and render 20 medical care or to select the continuance of any medical treatment or 21 care by an authorized physician selected by the employee. All examina- 22 tions and treatments by any medical personnel employed or selected by 23 the employer under section seven hundred eighty-one of this article 24 shall be performed for the purposes of the injury reduction program and 25 shall not interfere with the rights of employees to receive any medical 26 treatment or any other benefits under the workers' compensation law. 27 (a) Employers shall ensure that staffing and the practice of any first 28 aid or medical station meets state requirements for physician super- 29 vision of nurses, emergency medical technicians or other non-physician 30 personnel. 31 (b) In all warehouses with on-site medical or first aid providers for 32 the treatment of musculoskeletal injuries and disorders, the employer 33 shall consult with a medical consultant who is licensed by New York 34 state and board certified in occupational medicine. 35 (i) The employer shall obtain from the medical consultant a written 36 evaluation of the on-site medical or first aid provider program and 37 protocols followed in the warehouse for identification and treatment of 38 musculoskeletal injuries and disorders and shall include recommendations 39 to ensure compliance with accepted medical practice of the staffing, 40 supervision and documentation of medical treatment protocols. 41 (ii) The employer shall obtain from the medical consultant a summary 42 of treatment protocols suitable for worker patients covering all aspects 43 of the on-site medical and first aid practices, from early detection of 44 musculoskeletal injuries and disorders through evaluation by a qualified 45 physician and physician provision of appropriate work restrictions in 46 languages understood by the employees. 47 (iii) The employer shall ensure that the medical consultant reviews 48 the previous medical consultant evaluation, related materials and proto- 49 cols on an annual basis, and recommends changes as appropriate. 50 (iv) The employer shall ensure that all designated medical and first 51 aid providers have observed, in person, the jobs involving manual mate- 52 rials handling within the warehouse and all risk factors identified in 53 the evaluation conducted under the medical consultant evaluation. 54 (c) There shall be no delays in the provision of adequate medical care 55 to workers who report injuries to the on-site medical services.
S. 5081--A 5 1 (d) Each employer shall ensure that no supervisory or managerial 2 employee or other person discriminates or retaliates against any 3 current, former, or prospective employee or other person for reporting a 4 work-related injury or illness, or health and safety concern. 5 6. Employers shall ensure that employees and their designated repre- 6 sentatives are consulted both before and during the development and 7 implementation of all aspects of the program. Where employees have 8 established a workplace safety committee in compliance with section 9 twenty-seven-d of this chapter, the employer shall ensure that the 10 committee is consulted regarding the development and implementation of 11 all aspects of the injury reduction program. Any record created by the 12 employer according to this section shall be provided to the workplace 13 safety committee prior to consultation. All documents provided to 14 employees shall be provided in writing in English and in the language 15 identified by each employee as the primary language of such employee. 16 § 6. Severability. If any provision of this act, or any application of 17 any provision of this act, is held to be invalid, that shall not affect 18 the validity or effectiveness of any other provision of this act, or of 19 any other application of any provision of this act, which can be given 20 effect without that provision or application; and to that end, the 21 provisions and applications of this act are severable. 22 § 7. This act shall take effect on the sixtieth day after it shall 23 have become a law; provided, however, that if chapter 722 of the laws of 24 2022 shall not have taken effect on or before such date then sections 25 three and four of this act shall take effect on the same date and in the 26 same manner as such chapter of the laws of 2022 takes effect.