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S05081 Summary:

BILL NOS05081C
 
SAME ASSAME AS A08907-A
 
SPONSORRAMOS
 
COSPNSRADDABBO, BRESLIN, BRISPORT, CHU, COMRIE, FERNANDEZ, GONZALEZ, HOYLMAN-SIGAL, JACKSON, MANNION, MAY, PARKER, RIVERA, SALAZAR, SCARCELLA-SPANTON, SERRANO, SKOUFIS, STAVISKY, WEBB
 
MLTSPNSR
 
Amd §§780 & 786, add §789, Lab L
 
Establishes the warehouse worker injury reduction program; requires employers to establish 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.
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S05081 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         5081--C
 
                               2023-2024 Regular Sessions
 
                    IN SENATE
 
                                    February 22, 2023
                                       ___________
 
        Introduced  by  Sens.  RAMOS,  ADDABBO,  BRESLIN, BRISPORT, CHU, COMRIE,
          FERNANDEZ, GONZALEZ, HOYLMAN-SIGAL,  JACKSON,  MANNION,  MAY,  PARKER,
          RIVERA,  SALAZAR,  SCARCELLA-SPANTON, SERRANO, SKOUFIS, STAVISKY, WEBB
          -- 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 -- recommitted
          to the Committee on Labor in accordance with Senate Rule 6, sec. 8  --
          committee  discharged,  bill amended, ordered reprinted as amended and
          recommitted to said committee -- reported favorably from said  commit-
          tee and committed to the Committee on Finance -- 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 recent data (2022) released  by  the  bureau  of
     7  labor  statistics,  the  warehouse  industry in New York state reports a
     8  rate of the most serious work-related injuries involving  lost  time  or
     9  restricted duty (7.8 cases/100 full-time workers) that is more than five
    10  times  the  average  rates  of  these  types of injuries for all private
    11  industry in New York state (1.5 cases/100 full-time workers).   In  2022
    12  alone,  there  were 5,472 workers injured in the warehousing industry in
    13  New York state.  The most common types of  work-related  serious  injury
    14  reported  by employers in the warehouse sector are musculoskeletal inju-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08912-06-4

        S. 5081--C                          2
 
     1  ries, which often require workers to miss work  and  can  force  workers
     2  permanently out of the job and even out of the workforce.
     3    (b)  The  amount  and severity of injuries in New York's warehouses is
     4  having a direct impact on public health and safety. Each year, thousands
     5  of injured warehouse workers return to their  communities  with  chronic
     6  back,  neck,  shoulder and wrist pain that is often remedied by opiates.
     7  This feeds into the opiate epidemic that is  at  crisis  levels  in  our
     8  state.
     9    (c)  Many  communities  in  New  York  are underserved by full-service
    10  supermarkets and other essential stores and lack access  to  transporta-
    11  tion  to  buy  these essential supplies. Online retail may be their only
    12  source of basic necessities, including medical supplies  and  food.  The
    13  high  rate  of injuries at warehouses could lead to service disruptions,
    14  jeopardizing the health and safety of our communities. In fact,  accord-
    15  ing  to  an internal Amazon memo leaked to the press in 2021, Amazon has
    16  concerns that given the injury rates in the industry,  it  will  deplete
    17  the  available  warehouse labor supply in its U.S. network by 2024. This
    18  could impact the entire warehouse and  distribution  network,  impacting
    19  the public health of our communities.
    20    §  3. Section 780 of the labor law is amended by adding two new subdi-
    21  visions 8 and 9 to read as follows:
    22    8. "Musculoskeletal injuries and disorders" means work  related  inju-
    23  ries,  or disorders, of the muscles, nerves, tendons, ligaments, joints,
    24  cartilage of the upper and lower limbs, neck and lower  back  (including
    25  spinal  discs)  that:  (a)  are  caused  by sudden or sustained physical
    26  exertion; or (b) are not the result of  any  instantaneous  non-exertion
    27  event, such as slips, trips, or falls.
    28    9.  "Qualified  ergonomist"  means an ergonomist who is able to demon-
    29  strate proficiency in the core, minimum competencies of  ergonomics  and
    30  injury prevention, as defined by the commissioner. Until the commission-
    31  er defines such competencies and approves ergonomists in accordance with
    32  such  competencies,  consultants  approved  by the commissioner under 12
    33  NYCRR 59 and 60 with a credential as a certified safety professional  or
    34  certified industrial hygienist shall be deemed to qualify as an ergonom-
    35  ist.
    36     § 4. Section 786 of the labor law is amended by adding a new subdivi-
    37  sion 3 to read as follows:
    38    3.  Making a complaint related to section seven hundred eighty-nine of
    39  this article.
    40    § 5. The labor law is amended by adding a new section 789 to  read  as
    41  follows:
    42    §  789.  Injury  reduction  program. 1. Every employer subject to this
    43  section shall  establish  and  implement  an  injury  reduction  program
    44  designed  to identify and minimize the risks of musculoskeletal injuries
    45  and disorders among workers  involved  in  performing  manual  materials
    46  handling  tasks. The program shall include: worksite evaluation; control
    47  of exposures, including pace, which have caused or have the potential to
    48  cause musculoskeletal injuries and disorders; employee training; on-site
    49  medical and first aid practices; and employee involvement.
    50    2. The employer shall ensure that each job, process, or  operation  of
    51  work activity covered by this section or a representative number of such
    52  jobs, processes, or operations of identical work activities shall have a
    53  written  work site evaluation by a qualified ergonomist for risk factors
    54  which have or are likely to cause musculoskeletal  injuries  and  disor-
    55  ders.  Such  risk  factors  shall include, but are not limited to, rapid
    56  pace, forceful exertions, repetitive  motions,  twisting,  bending,  and

        S. 5081--C                          3
 
     1  awkward  postures and combinations thereof that had caused or are likely
     2  to cause musculoskeletal injuries and disorders.
     3    (a)  Any worksite evaluations shall also determine whether any employ-
     4  ees exposed to such risk factors are subject to either personnel  action
     5  with  the potential for adverse action, or adverse action or termination
     6  themselves, arising in whole or in part from an employer's use of quotas
     7  to determine employee assignments.
     8    (b) All such worksite evaluations shall  obtain  recommendations  from
     9  workers  who  regularly  perform those jobs on the possible risk factors
    10  and any workplace changes that can reduce such risk factors.
    11    (c) Copies of such worksite risk  factor  evaluations  shall  be  made
    12  available to workers and their representatives upon request, at no cost,
    13  within  one  business  day of such request.  Workers and their represen-
    14  tatives shall be notified in writing of  the  results  of  the  worksite
    15  evaluation.  Employers  shall  maintain accessible copies of such evalu-
    16  ations at locations within the warehouse  and  shall  make  such  copies
    17  readily available to workers.
    18    (d) An initial worksite evaluation shall be conducted.  Worksite eval-
    19  uations  shall be reviewed and updated at least annually. A new analysis
    20  of risk factors shall be conducted in accordance with the provisions  of
    21  subdivision  one  of this section whenever a new job, process, or opera-
    22  tion is introduced which could increase the risk factors for  musculosk-
    23  eletal  injuries  and  disorders.   Such new analysis shall be conducted
    24  within thirty days of the creation or change of a job, process or opera-
    25  tion.
    26    (e) The commissioner shall form a task force chaired by  a  recognized
    27  academic leader in the field of ergonomics in New York state and includ-
    28  ing,  but  not limited to, representatives from the warehouse workforce,
    29  labor organizations active in the warehousing industry, and employers in
    30  the industry, to  recommend  the  core  competencies  required  for  the
    31  certification of qualified ergonomists, as well as standardized worksite
    32  evaluations and controls.
    33    (f) The commissioner shall adopt a standard and process for certifying
    34  qualified  ergonomists, as well as standardized worksite evaluations and
    35  controls, based on the recommendations of the task force.
    36    3. The employer shall correct in a  timely  manner  any  risk  factors
    37  identified  as  having  caused  or being likely to cause musculoskeletal
    38  injuries and disorders. For any  corrections  which  require  more  than
    39  thirty  days  to  complete,  the  employer  shall revise, as needed, and
    40  provide a schedule for such proposed corrections. Such schedule shall be
    41  included in the evaluations provided  to  workers  and  their  represen-
    42  tatives.
    43    (a)  Where  the  employer  demonstrates that it is unable to eliminate
    44  identified risk factors, the employer shall minimize  the  exposures  to
    45  the extent feasible.
    46    (b) In reducing risk factors, the employer shall consider:
    47    (i)  engineering  controls  and  redesigning  work  stations to change
    48  shelving heights, provide adjustable fixtures or tool redesign; and
    49    (ii) administrative controls, such as job rotation which  reduces  the
    50  exposure to risk factors, reduced work pacing or additional work breaks.
    51    (c)  Employers  shall  maintain records of steps taken to eliminate or
    52  reduce risk factors and shall make copies available to workers and their
    53  representatives upon request.
    54    4.  All  employers  covered  by  this  section  shall  provide  injury
    55  reduction  training to all employees involved in performing manual mate-
    56  rials handling jobs and tasks at the warehouse during normal work  hours

        S. 5081--C                          4
 
     1  and  without suffering a loss of pay. Such training shall be provided in
     2  a language and vocabulary that  the  workers  understand  and  shall  be
     3  repeated  annually.  The training shall also be provided to the workers'
     4  supervisors. Such training shall be in addition to the training required
     5  under section twenty-seven-d of this chapter and shall include:
     6    (a)  The  early symptoms of musculoskeletal injuries and disorders and
     7  the importance of early detection;
     8    (b) Musculoskeletal injury and disorder risk factors and exposures  at
     9  work, including the hazards posed by excessive rates of work;
    10    (c)  Methods  to  reduce risk factors for musculoskeletal injuries and
    11  disorders,  including  both  engineering  controls  and   administrative
    12  controls,  such  as limitations on work pace and increased scheduled and
    13  unscheduled breaks;
    14    (d) The employer's program to identify risk factors as required  under
    15  this section and prevent musculoskeletal injuries and disorders, includ-
    16  ing  the summary protocols for medical treatment approved by the employ-
    17  er's medical consultant;
    18    (e) The rights and function of workplace safety committees established
    19  under section twenty-seven-d of this chapter and the rights of employees
    20  to report any risk factors, other hazards, injuries or health and safety
    21  concerns; and
    22    (f) Training on the unlawful retaliation  of  any  provision  in  this
    23  section, including the disciplinary actions required when supervisors or
    24  managers  violate  the  law  or policy, as well as the employer's policy
    25  prohibiting any workplace discrimination.
    26    5. Any on-site medical office or first aid station that  sees  workers
    27  in  warehouses  covered by this section with symptoms of musculoskeletal
    28  injuries and disorders shall be staffed with medical professionals oper-
    29  ating within their legal scope of practice.   Nothing  in  this  section
    30  shall  infringe  on the rights of workers under the opening paragraph of
    31  subdivision (a) of section thirteen of the workers' compensation law  to
    32  either  select  an  authorized  physician  to treat employees and render
    33  medical care or to select the continuance of any  medical  treatment  or
    34  care  by  an authorized physician selected by the employee. All examina-
    35  tions and treatments by any medical personnel employed  or  selected  by
    36  the  employer  under  section  seven  hundred eighty-one of this article
    37  shall be performed for the purposes of the injury reduction program  and
    38  shall  not interfere with the rights of employees to receive any medical
    39  treatment or any other benefits under the workers' compensation law.
    40    (a) Employers shall ensure that staffing and the practice of any first
    41  aid or medical station meets state  requirements  for  physician  super-
    42  vision  of  nurses, emergency medical technicians or other non-physician
    43  personnel.
    44    (b) In all warehouses with on-site medical or first aid providers  for
    45  the  treatment  of  musculoskeletal injuries and disorders, the employer
    46  shall consult with a medical consultant who  is  licensed  by  New  York
    47  state and board certified in occupational medicine.
    48    (i)  The  employer  shall obtain from the medical consultant a written
    49  evaluation of the on-site medical or  first  aid  provider  program  and
    50  protocols  followed in the warehouse for identification and treatment of
    51  musculoskeletal injuries and disorders and shall include recommendations
    52  to ensure compliance with accepted medical  practice  of  the  staffing,
    53  supervision and documentation of medical treatment protocols.
    54    (ii)  The  employer shall obtain from the medical consultant a summary
    55  of treatment protocols suitable for worker patients covering all aspects
    56  of the on-site medical and first aid practices, from early detection  of

        S. 5081--C                          5
 
     1  musculoskeletal injuries and disorders through evaluation by a qualified
     2  physician  and  physician  provision of appropriate work restrictions in
     3  languages understood by the employees.
     4    (iii)  The  employer  shall ensure that the medical consultant reviews
     5  the previous medical consultant evaluation, related materials and proto-
     6  cols on an annual basis, and recommends changes as appropriate.
     7    (iv) The employer shall ensure that all designated medical  and  first
     8  aid  providers have observed, in person, the jobs involving manual mate-
     9  rials handling within the warehouse and all risk factors  identified  in
    10  the evaluation conducted under the medical consultant evaluation.
    11    (c) There shall be no delays in the provision of adequate medical care
    12  to workers who report injuries to the on-site medical services.
    13    (d)  Each  employer  shall  ensure  that  no supervisory or managerial
    14  employee  or  other  person  discriminates  or  retaliates  against  any
    15  current, former, or prospective employee or other person for reporting a
    16  work-related injury or illness, or health and safety concern.
    17    6.  Employers  shall ensure that employees and their designated repre-
    18  sentatives are consulted both before  and  during  the  development  and
    19  implementation  of  all  aspects  of  the  program. Where employees have
    20  established a workplace safety  committee  in  compliance  with  section
    21  twenty-seven-d  of  this  chapter,  the  employer  shall ensure that the
    22  committee is consulted regarding the development and  implementation  of
    23  all  aspects  of the injury reduction program. Any record created by the
    24  employer according to this section shall be provided  to  the  workplace
    25  safety  committee  prior  to  consultation.  All  documents  provided to
    26  employees shall be provided in writing in English and  in  the  language
    27  identified by each employee as the primary language of such employee.
    28    § 6. Severability. If any provision of this act, or any application of
    29  any  provision of this act, is held to be invalid, that shall not affect
    30  the validity or effectiveness of any other provision of this act, or  of
    31  any  other  application of any provision of this act, which can be given
    32  effect without that provision or  application;  and  to  that  end,  the
    33  provisions and applications of this act are severable.
    34    §  7.  This  act  shall take effect on June 1, 2025; provided, however
    35  that paragraph (d) of subdivision 2 of section 789 of the labor  law  as
    36  added  by  section five of this act shall take effect on the one hundred
    37  eightieth day after it shall have become a law; provided further, howev-
    38  er, that paragraph (e) of subdivision 2 of section 789 of the labor  law
    39  as  added  by section five of this act shall take effect on the sixtieth
    40  day after it shall have become a law;  and  provided  further,  however,
    41  that  paragraph (f) of subdivision 2 and subdivisions 4 and 5 of section
    42  789 of the labor law as added by section five of  this  act  shall  take
    43  effect on the sixtieth day after it shall have become a law.
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