N.Y. Workers' Compensation Law § 134: Workplace safety and loss prevention program; certification of safety and loss management specialists

§ 134. Workplace safety and loss prevention program; certification of

safety and loss management specialists. 1. The commissioner of labor, in

consultation with the superintendent of financial services and the chair

of the board shall develop a compulsory workplace safety and loss

prevention program for all employers whose most recent annual payroll is

in excess of eight hundred thousand dollars and whose most recent

experience rating exceeds the level of 1.2. The commissioner of labor

shall promulgate rules and regulations for the implementation of safety,

drug and alcohol prevention, and return to work incentive programs.

2. The commissioner of labor shall provide written notification to

employers whose most recent annual payroll is in excess of eight hundred

thousand dollars and whose most recent experience rating exceeds the

level of 1.2 that they are required to undergo a workplace safety and

loss prevention consultation and written evaluation. Copies of the

written notification shall be provided to the department of labor and

the employer's insurer. The employer must arrange for the consultation

and evaluation within thirty days after receiving the notification and

must within ten days thereafter notify its insurer and the department of

labor in writing of the means by which the evaluation is to be

accomplished. The employer must provide its insurer and the department

of labor with a copy of the evaluation within thirty days after

receiving it from the safety and loss consultant. Any remedial action

recommended in the evaluation must be implemented by the employer within

a reasonable period of time, but not to exceed six months after the

employer receives the evaluation. The insurer, within sixty days after

the expiration of such six month period, shall conduct an inspection to

ascertain whether the recommended remedial action has been implemented,

and the insurer shall within forty-five days thereafter provide to the

employer and the department of labor a copy of its inspection report.

3. If the employer does not arrange for a consultation and evaluation

or fails to implement recommended remedial action within the times

prescribed, the insurer shall surcharge the employer's manual rate

premium by .05 for the next ensuing policy period, and so long as

non-compliance continues there shall be an additional .05 surcharge for

each year thereafter of non-compliance. An employer may challenge an

insurer's determination that the employer has not taken the recommended

remedial action by appeal to the department of labor on notice to the

insurer. The department of labor shall thereafter conduct an independent

inspection and its determination of compliance or non-compliance shall

be final. However, such appeal may not be entertained if the employer

has not paid its billed premium including any surcharge thereof.

4. Employers required to participate in the workplace safety and loss

prevention program established by this section shall be permitted to

utilize the services of either the department of labor, or a private

safety and loss consultant which has been certified by the department of

labor. Private safety and loss consultants may charge employers a fee

for their services.

6. Safety, drug and alcohol prevention, and return to work incentive

programs. Employers insured through the state insurance fund (except

those who are current policyholders in a recognized safety group) or any

other insurer that issues policies of workers' compensation insurance,

shall be eligible for a credit in workers' compensation insurance

premiums if they:

a. pay annual workers' compensation insurance premiums of at least

five thousand dollars; and

b. maintain an experience rating of under 1.30 for the year preceding

and the years in which the credit has been applied for provided that no

insured required to implement a safety program pursuant to subdivision

one of this section shall be eligible for a premium credit under this

subdivision; and

c. implement any of the following:

(1) a safety incentive plan, that has been recommended by a safety and

loss management specialist after such specialist has been certified by

the commissioner of labor, or if such plan otherwise conforms to

regulations promulgated by the commissioner of labor;

(2) a drug and alcohol prevention program that conforms to regulations

issued by the commissioner of labor, in consultation with the office of

alcoholism and substance abuse services; and

(3) a return to work program that conforms to regulations issued by

the commissioner of labor.

The credit for each such program shall be established by regulations

issued by the superintendent of financial services. Such regulations

shall include provisions for recertification on an annual basis.

7. An individual self-insured employer shall be eligible for a

reduction in the security deposit provided for in subdivision three of

section fifty of this chapter, and a member of a group shall be eligible

for a credit against their contributors if such credit is authorized by

the chair and in accordance with limitations set by the chair, if such

employer has implemented any or all of the following: a. a safety

incentive plan that has been recommended by a safety and loss management

specialist after such specialist has been certified by the commissioner

of labor or if such plan otherwise conforms to regulations promulgated

by the commissioner of labor;

b. a drug and alcohol prevention program that conforms to regulations

issued by the commissioner of labor, in consultation with the office of

alcoholism and substance abuse services; and

c. a return to work program that conforms to regulations issued by the

commissioner of labor.

The credit for each program shall be no greater than established by

regulations issued by the superintendent of financial services or such

lesser amount as determined by the chair of the board to be necessary to

assure that the deposit remains sufficient to secure the employer's

liability to pay the compensation provided in this chapter. The chair,

in consultation with the superintendent of financial services, shall

adopt regulations which provide for recertification on an annual basis.

8. The commissioner of labor shall: (i) receive and review

applications from applicants for certification as safety and loss

management specialists; and (ii) certify persons as safety and loss

management specialists; and (iii) revoke certification of safety and

loss management specialists for just cause.

9. The commissioner of labor shall monitor all safety incentive plans

implemented by employers. As part of this responsibility, the board

shall insure that employee representatives are involved in the

development of such plans through meetings and discussions with the

respective certified safety and loss management specialist.

10. The commissioner of labor, in consultation with the superintendent

of financial services, shall promulgate rules and regulations for the

certification of safety and loss management specialists. Such rules and

regulations shall include provisions that outline the minimum

qualifications for safety and loss management specialists, procedures

for certification, causes for revocation or suspension of certification

and appropriate administrative and judicial review procedures, and

violations and penalties for misuse of certification by certified safety

and loss management specialists.