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A09235 Summary:

BILL NOA09235
 
SAME ASNo Same As
 
SPONSORGonzalez-Rojas
 
COSPNSR
 
MLTSPNSR
 
Add §133-a, Art 34 §960, amd §§131, 132 & 141, Lab L
 
Prohibits oppressive agricultural child labor; requires heat illness prevention for agricultural employees.
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A09235 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          9235
 
                   IN ASSEMBLY
 
                                    February 9, 2022
                                       ___________
 
        Introduced  by  M. of A. GONZALEZ-ROJAS -- read once and referred to the
          Committee on Labor
 
        AN ACT to amend the labor law, in  relation  to  prohibiting  oppressive
          agricultural  child  labor;  and requiring heat illness prevention for
          agricultural employees
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  The labor law is amended by adding a new section 133-a to
     2  read as follows:
     3    § 133-a. Prohibited employment of minors in agriculture. 1. As used in
     4  this section, the following terms shall have the following meanings:
     5    a.  "Oppressive agricultural child labor" means  agricultural  employ-
     6  ment  where  (1)  any  employee who is under the age of sixteen years is
     7  employed in any occupation that involves performing a hazardous agricul-
     8  tural activity, or that is  otherwise  particularly  hazardous  for  the
     9  employment  of children between such ages or detrimental to their health
    10  or well-being; (2) any employee who is under the age of sixteen years is
    11  employed by an employer when attendance upon instruction is not required
    12  by the education law, in  any  occupation  that  involves  performing  a
    13  hazardous  agricultural  activity,  or  that  is  otherwise particularly
    14  hazardous for the employment of children between  such  ages  or  detri-
    15  mental  to  their health or well-being; or (3) any employee who is under
    16  the age of sixteen years is employed by an employer  unless  such  minor
    17  has an exception pursuant to section one hundred thirty of this article.
    18  Such  term  shall not apply to any minor employed in agriculture by such
    19  minor's parents or a person in a parental relationship with  such  minor
    20  on  a farm owned by such parent or person in a parental relationship and
    21  the employment will not be detrimental to the minor's health or well-be-
    22  ing.
    23    b. "Hazardous agricultural activity" means any  agricultural  activity
    24  performed by any minor that creates a substantial risk of serious injury
    25  or serious illness to any person, including but not limited to:
    26    (1) Operating an all-terrain vehicle or similar off-road vehicle;
    27    (2) Operating a tractor, forklift, or other heavy equipment;
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14252-02-2

        A. 9235                             2
 
     1    (3) Handling any part of a tobacco plant; and
     2    (4)  Any  task  that  requires handling pesticides, open containers of
     3  pesticides, operating any equipment that may contain pesticide  residue,
     4  assisting with application of pesticides, acting as a pesticide flagger,
     5  performing  tasks  as  a  crop advisor during any pesticide application,
     6  entering a pesticide treated area during an applicable  restricted-entry
     7  interval or otherwise have significant risk to pesticide exposure.
     8    c.  "Serious  injury  or  serious illness" means the permanent loss or
     9  substantial impairment of the function of  a  bodily  member,  organ  or
    10  mental  faculty;  or  permanent paralysis or substantial impairment that
    11  causes loss of movement or mobility of an arm, leg, foot, hand, or other
    12  body part.
    13    2. No employer shall employ oppressive  agricultural  child  labor  or
    14  produce,  manufacture,  deal,  ship,  or  deliver for shipment any goods
    15  produced where the employer knew or reasonably should  have  known  that
    16  oppressive child labor was employed to yield such goods.
    17    3.  If  the  commissioner  finds  that  an  employer  has violated any
    18  provision of this section or of a rule or regulation promulgated  there-
    19  under, the commissioner may by an order which shall describe particular-
    20  ly  the  nature of the violation, assess the employer a civil penalty of
    21  not less than five hundred dollars and not more  than  fifteen  thousand
    22  dollars  for  each employee who was the subject of such violation, or to
    23  imprisonment for not more than five years, or both; and/or a fine of not
    24  less than fifteen thousand dollars and not more than sixty thousand  one
    25  hundred  fifteen dollars with regard to each such violation that results
    26  in the serious injury, serious illness, or death of any  employee  under
    27  the  age  of  eighteen,  which  may  be doubled where the violation is a
    28  repeated or a willful violation, or to imprisonment for  not  more  than
    29  five years, or both.
    30    4.  a. The department shall annually collect and analyze data concern-
    31  ing children under the age of eighteen who are employed in  agriculture,
    32  and each work-related injury, illness, or death of any such child.
    33     b.  Annually before December thirty-first the department shall submit
    34  to the governor and state legislature and publish on  such  department's
    35  website a report which shall include:
    36    (1) A summary of the data collected pursuant to this subdivision;
    37    (2)  An  evaluation,  based  on such data, that reflects the status of
    38  child labor and related safety and health hazards; and
    39    (3) Any information, based on such data, that leads  the  commissioner
    40  to  believe  that  children under the age of sixteen years may have been
    41  employed in violation of this section.
    42    c. (1) Any employer, except  a  minor's  parents  or  a  person  in  a
    43  parental  relationship  with  such  minor,  shall submit a report to the
    44  commissioner no later than five days thereafter  when  the  employer  is
    45  involved in any event related to:
    46    (i)  A  work-related  serious  injury  to an employee under the age of
    47  sixteen years employed in agriculture;
    48    (ii) A work-related serious illness of an employee under  the  age  of
    49  sixteen years employed in agriculture; or
    50    (iii)  A  work-related  death  of an employee under the age of sixteen
    51  years employed in agriculture.
    52    (2) Such report shall at a minimum include:
    53    (i) The name and address of the employer;
    54    (ii) The name, address, and age of the employee;
    55    (iii) Details relevant  to  the  incident,  to  include  environmental
    56  hazards,  chemical  or  pesticide exposure, use of machinery or tools at

        A. 9235                             3

     1  the time of the incident, work tasks performed at the time of the  inci-
     2  dent, and other details relating to the incident; and
     3    (iv)   Any  other  information  the  commissioner  may  by  regulation
     4  prescribe.
     5    d. Any employer who fails to file a report  as  required  pursuant  to
     6  paragraph  c of this subdivision may be assessed, by the commissioner in
     7  his or her discretion, a civil penalty of not  less  than  five  hundred
     8  dollars and not more than seven thousand dollars per violation.
     9    5.  Any  employer  who  employs  agricultural workers under the age of
    10  sixteen years shall develop and implement written procedures  to  comply
    11  with the provisions of this section.
    12    6.  In  addition to the rulemaking authority set forth in subdivisions
    13  four and five of section one hundred thirty-three of this  article,  the
    14  commissioner  shall  promulgate  any    rule  or regulation necessary to
    15  implement the provisions of this section.
    16    § 2. The labor law is amended by adding a new article 34  to  read  as
    17  follows:
    18                                 ARTICLE 34
    19           HEAT ILLNESS PREVENTION DURING AGRICULTURAL ACTIVITIES
 
    20  Section 960. Heat illness prevention during agricultural activities.
    21    §  960.  Heat illness prevention during agricultural activities. 1. As
    22  used in this section, the following terms shall have the following mean-
    23  ings:
    24    a. "Agricultural activities" shall  mean  any  condition  or  activity
    25  which  occurs  on a farm in connection with the commercial production of
    26  farm products and includes, but is not limited to, marketed  produce  at
    27  roadside stands or farm markets; noise; odors; dust; fumes; operation of
    28  machinery and irrigation pumps; movement, including, but not limited to,
    29  use of current county road ditches, streams, rivers, canals, and drains,
    30  and use of water for agricultural activities; ground and aerial applica-
    31  tion  of seed, fertilizers, conditioners, and plant protection products;
    32  keeping of bees for production of agricultural or apicultural  products;
    33  employment  and  use  of  labor; roadway movement of equipment and live-
    34  stock; protection from  damage  by  wildlife;  prevention  of  trespass;
    35  construction  and  maintenance  of  buildings,  fences,  roads, bridges,
    36  ponds, drains, waterways, and similar features and maintenance of stream
    37  banks and watercourses; and conversion from one agricultural activity to
    38  another, including a change in the type of  plant-related  farm  product
    39  being  produced.  The  term  includes use of new practices and equipment
    40  consistent with technological development within the agricultural indus-
    41  try.
    42    b. "Farm" means the  land,  buildings,  freshwater  ponds,  freshwater
    43  culturing  and  growing facilities, and machinery used in the commercial
    44  production of farm products.
    45    c. "Farm product" means those plants and animals useful to humans  and
    46  includes,  but is not limited to, forages and sod crops, dairy and dairy
    47  products, poultry and poultry products, livestock,  including  breeding,
    48  grazing,  and  recreational  equine  use,  fruits,  vegetables, flowers,
    49  seeds, grasses, trees, freshwater fish and fish products,  apiaries  and
    50  apiary products, equine and other similar products, or any other product
    51  which incorporates the use of food, feed, fiber, or fur.
    52    2.  Employees  shall  have  access  to  potable drinking water that is
    53  fresh, pure, suitably cool, and provided to employees free of charge  by
    54  the employer when performing agricultural activities. The water shall be
    55  located  as  close as practicable to the areas where employees are work-

        A. 9235                             4
 
     1  ing.   Employers shall provide water in  sufficient  quantity  to  allow
     2  employees  to  drink  at least thirty-two fluid ounces of water per hour
     3  per employee.   Employers  shall  encourage  employees  to  drink  water
     4  frequently.
     5    3.  a.  Shade  that is open to the air or provided with ventilation or
     6  cooling shall be present when the  temperature  exceeds  eighty  degrees
     7  Fahrenheit.  Employers  shall  provide  timely  access  to shade upon an
     8  employee's request when the temperature does not exceed  eighty  degrees
     9  Fahrenheit.
    10    b.  Employees  shall  be  allowed a preventative cool-down rest in the
    11  shade for a minimum of five minutes per hour  when  performing  agricul-
    12  tural activities.
    13    c.  Where the employer can demonstrate that it is unsafe or infeasible
    14  to have shade present on a continuous basis, the  employer  may  utilize
    15  alternative procedures that provide equivalent protection.
    16    d.  Employees  who  experience  symptoms  of heat illness shall not be
    17  ordered back to work until any symptoms of heat  illness  have  subsided
    18  and  shall  be  provided  timely  appropriate  first  aid  or  emergency
    19  response.
    20    4. The commissioner shall promulgate any rule or regulation  necessary
    21  to  implement  the provisions of this section and that require employers
    22  to train supervisors and employees to protect employees from heat-relat-
    23  ed illness caused by heat stress.
    24    § 3. Paragraph f of subdivision 3 of section 131 of the labor law,  as
    25  amended  by  chapter  975  of  the  laws  of 1966, is amended to read as
    26  follows:
    27    f. A minor fourteen or fifteen years of age may be  employed  in  farm
    28  service  pursuant to section one hundred thirty-three-a of this article,
    29  when attendance upon instruction is not required by the  education  law,
    30  provided  such  minor  presents  a farm work permit issued in accordance
    31  with the education law. Such permit shall be valid only when  signed  by
    32  the employer and it shall not be valid for work in or in connection with
    33  a factory.
    34    §  4. Subparagraph 1 of paragraph a of subdivision 3 of section 132 of
    35  the labor law, as amended by chapter  1017  of  the  laws  of  1971,  is
    36  amended to read as follows:
    37    (1)  Work  on a farm pursuant to the provisions of section one hundred
    38  thirty-three-a of this article;
    39    § 5. Subdivision 1 of section 141 of the  labor  law,  as  amended  by
    40  chapter 642 of the laws of 1991, is amended to read as follows:
    41    1.  [If] Notwithstanding the violations set forth in subdivision three
    42  of section one hundred thirty-three-a of this article,  if  the  commis-
    43  sioner finds that an employer has violated any provision of this article
    44  or  of a rule or regulation promulgated thereunder, the commissioner may
    45  by an  order  which  shall  describe  particularly  the  nature  of  the
    46  violation,  assess  the  employer  a  civil penalty of not more than one
    47  thousand dollars for the first such violation, not more than  two  thou-
    48  sand  dollars  for  a  second violation and not more than three thousand
    49  dollars for a third or subsequent violation. Such penalty shall be  paid
    50  to the commissioner for deposit in the treasury of the state. In assess-
    51  ing the amount of the penalty, the commissioner shall give due consider-
    52  ation  to  the  size  of  the employer's business, the good faith of the
    53  employer,  the  gravity  of  the  violation,  the  history  of  previous
    54  violations  and  the  failure  to  comply  with  record-keeping or other
    55  requirements, provided, however,  that  where  such  violation  involves
    56  illegal  employment  during  which a minor is seriously injured or dies,

        A. 9235                             5

     1  such penalty shall be treble the maximum penalty allowable under the law
     2  for such violation.  For the purposes of this subdivision, a minor shall
     3  be deemed to be seriously injured if such injury results in a  permanent
     4  partial  or  permanent  total  disability  as determined by the workers'
     5  compensation board.
     6    § 6. This act shall take effect on the thirtieth day  after  it  shall
     7  have become a law. Effective immediately, the addition, amendment and/or
     8  repeal  of  any  rule  or regulation necessary for the implementation of
     9  this act on its effective date are authorized to be made  and  completed
    10  on or before such effective date.
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