N.Y. Labor Law § 789: Injury reduction program

§ 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 work-related

musculoskeletal disorders among workers involved in performing manual

materials handling tasks. The program shall include: worksite

evaluation; control of exposures, including ergonomic risk factors such

as pace, which have caused or have the potential to cause work-related

musculoskeletal disorders; employee training; on-site medical and first

aid practices; and employee involvement.

2. The employer shall ensure that each job, process, shift or

operation of work activity covered by this section or a representative

number of such jobs, processes, shifts or operations of identical work

activities shall be addressed by its injury reduction program. Unless

otherwise exempted under this act, the employer shall have a written

work site evaluation by a competent person for risk factors which have

or are likely to cause work-related musculoskeletal disorders. Such risk

factors shall include, but are not limited to, rapid pace, forceful

exertions, extreme or static postures, repetitive motions, direct

pressure, contact stress, vibration, or cold temperatures that had

caused or are likely to cause work-related musculoskeletal disorders.

(a) Any worksite evaluations shall also determine whether any

employees 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 incorporate input from workers

who regularly perform those jobs, either directly or through an

employee-led workplace safety committee, on the possible risk factors

and any workplace changes that can reduce such risk factors.

(c) Copies of such worksite 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 representatives shall be

notified in writing of the results of the worksite evaluation. Employers

shall maintain accessible copies of such evaluations at locations within

the warehouse and shall make such copies readily available to workers.

(d) An initial worksite evaluation shall be conducted. Worksite

evaluations shall be reviewed and updated at least annually. A new

analysis of risk factors shall be conducted in accordance with the

provisions of subdivision one of this section whenever a new job,

process, or operation is introduced which could increase the risk

factors for work-related musculoskeletal disorders. Such new analysis

shall be conducted within thirty days of the creation or change of a

job, process or operation.

(e) A worksite evaluation must be reviewed by a board certified

ergonomist when an employee-led workplace safety committee makes a

written request to the employer based upon a material concern related to

the findings of a competent person. Where there is no active

employee-led workplace safety committee, a worksite evaluation must be

reviewed by a board certified ergonomist when any employee-led committee

makes a formal recommendation based upon a material concern related to

the findings of a competent person.

3. The employer shall correct in a timely manner any risk factors

identified as having caused or being likely to cause work-related

musculoskeletal 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

representatives.

(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

materials 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 any training

received in accordance with section twenty-seven-d of this chapter and

shall include:

(a) The early symptoms of work-related musculoskeletal disorders and

the importance of early detection;

(b) Musculoskeletal disorder ergonomic risk factors and exposures at

work, including the hazards posed by excessive rates of work;

(c) Methods to reduce risk factors for musculoskeletal 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 work-related musculoskeletal disorders,

including the summary protocols for medical treatment approved by the

employer'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 a reference to the employer's policy requiring

disciplinary actions when supervisors or managers violate the law or

policy, as well as the employer's policy prohibiting any workplace

discrimination.

5. Any on-site location that staffs a medical professional to treat

workers in warehouses covered by this section for symptoms of

work-related musculoskeletal disorders shall be staffed with medical

professionals operating 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 examinations 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

supervision 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 work-related musculoskeletal 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

work-related musculoskeletal 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

work-related musculoskeletal 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

protocols 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

materials 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.

(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

representatives 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 ergonomic safety 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. If, prior to the effective date of this section, an employer

has formed workplace safety committees in the State of New York through

collective bargaining that is currently active, and continuously

maintains such safety committees in conjunction with an injury

prevention program that fully complies with the federal Occupational

Safety and Health Act, then such employer may instead allow an

employee-led workplace safety committee to review or conduct any

worksite evaluations performed by a competent person. Such injury

prevention program must be reviewed by a board certified ergonomist

where an employee-led workplace safety committee makes a written request

to the employer based upon a material concern related to the findings of

a competent person. Where there is no active employee-led workplace

safety committee, a worksite evaluation must be reviewed by a board

certified ergonomist when any employee-led committee makes a written

request to the employer based upon a material concern related to the

findings of a competent person. Such review must be commenced within

thirty days of receipt of such written request. Copies of revised or new

worksite evaluations shall be made available to workers and their

representatives, at no cost, upon request upon completion of such

worksite evaluation.