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.
STATE OF NEW YORK
________________________________________________________________________
8907
IN ASSEMBLY
January 26, 2024
___________
Introduced by M. of A. BRONSON -- read once and referred to the Commit-
tee 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:
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-
15 ries, which often require workers to miss work and can force workers
16 permanently out of the job and even out of the workforce.
17 (b) The amount and severity of injuries in New York's warehouses is
18 having a direct impact on public health and safety. Each year, thousands
19 of injured warehouse workers return to their communities with chronic
20 back, neck, shoulder and wrist pain that is often remedied by opiates.
21 This feeds into the opiate epidemic that is at crisis levels in our
22 state.
23 (c) Many communities in New York are underserved by full-service
24 supermarkets and other essential stores and lack access to transporta-
25 tion to buy these essential supplies. Online retail may be their only
26 source of basic necessities, including medical supplies and food. The
27 high rate of injuries at warehouses could lead to service disruptions,
28 jeopardizing the health and safety of our communities. In fact, accord-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08912-05-4
A. 8907 2
1 ing to an internal Amazon memo leaked to the press in 2021, Amazon has
2 concerns that given the injury rates in the industry, it will deplete
3 the available warehouse labor supply in its U.S. network by 2024. This
4 could impact the entire warehouse and distribution network, impacting
5 the public health of our communities.
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
A. 8907 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. Worksite eval-
5 uations shall be reviewed and updated at least annually. A new analysis
6 of risk factors shall be conducted in accordance with the provisions of
7 subdivision one of this section whenever a new job, process, or opera-
8 tion is introduced which could increase the risk factors for musculosk-
9 eletal injuries and disorders. Such new analysis shall be conducted
10 within thirty days of the creation or change of a job, process or opera-
11 tion.
12 (e) The commissioner shall form a task force chaired by a recognized
13 academic leader in the field of ergonomics in New York state and includ-
14 ing, but not limited to, representatives from the warehouse workforce,
15 labor organizations active in the warehousing industry, and employers in
16 the industry, to recommend the core competencies required for the
17 certification of qualified ergonomists, as well as standardized worksite
18 evaluations and controls.
19 (f) The commissioner shall adopt a standard and process for certifying
20 qualified ergonomists, as well as standardized worksite evaluations and
21 controls, based on the recommendations of the task force.
22 3. The employer shall correct in a timely manner any risk factors
23 identified as having caused or being likely to cause musculoskeletal
24 injuries and disorders. For any corrections which require more than
25 thirty days to complete, the employer shall revise, as needed, and
26 provide a schedule for such proposed corrections. Such schedule shall be
27 included in the evaluations provided to workers and their represen-
28 tatives.
29 (a) Where the employer demonstrates that it is unable to eliminate
30 identified risk factors, the employer shall minimize the exposures to
31 the extent feasible.
32 (b) In reducing risk factors, the employer shall consider:
33 (i) engineering controls and redesigning work stations to change
34 shelving heights, provide adjustable fixtures or tool redesign; and
35 (ii) administrative controls, such as job rotation which reduces the
36 exposure to risk factors, reduced work pacing or additional work breaks.
37 (c) Employers shall maintain records of steps taken to eliminate or
38 reduce risk factors and shall make copies available to workers and their
39 representatives upon request.
40 4. All employers covered by this section shall provide injury
41 reduction training to all employees involved in performing manual mate-
42 rials handling jobs and tasks at the warehouse during normal work hours
43 and without suffering a loss of pay. Such training shall be provided in
44 a language and vocabulary that the workers understand and shall be
45 repeated annually. The training shall also be provided to the workers'
46 supervisors. Such training shall be in addition to the training required
47 under section twenty-seven-d of this chapter and shall include:
48 (a) The early symptoms of musculoskeletal injuries and disorders and
49 the importance of early detection;
50 (b) Musculoskeletal injury and disorder risk factors and exposures at
51 work, including the hazards posed by excessive rates of work;
52 (c) Methods to reduce risk factors for musculoskeletal injuries and
53 disorders, including both engineering controls and administrative
54 controls, such as limitations on work pace and increased scheduled and
55 unscheduled breaks;
A. 8907 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.
A. 8907 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 immediately; provided, however that
23 paragraph (d) of subdivision 2 of section 789 of the labor law as added
24 by section five of this act shall take effect on the three hundred
25 sixty-fifth day after it shall have become a law; provided further,
26 however, that paragraph (e) of subdivision 2 of section 789 of the labor
27 law as added by section five of this act shall take effect on the sixti-
28 eth day after it shall have become a law; and provided further, however,
29 that paragraph (f) of subdivision 2 and subdivisions 4 and 5 of section
30 789 of the labor law as added by section five of this act shall take
31 effect on the one hundred eightieth day after it shall have become a
32 law.
