§ 789 — Injury reduction program

§ 789. Injury reduction program. 1. Every employer subject to this\nsection shall establish and implement an injury reduction program\ndesigned to identify and minimize the risks of work-related\nmusculoskeletal disorders among workers involved in performing manual\nmaterials handling tasks. The program shall include: worksite\nevaluation; control of exposures, including ergonomic risk factors such\nas pace, which have caused or have the potential to cause work-related\nmusculoskeletal disorders; employee training; on-site medical and first\naid practices; and employee involvement.\n 2. The employer shall ensure that each job, process, shift or\noperation of work activity covered by this section or a representative\nnumber of such jobs, processes, shifts or operations of identical work\nactivities shall be addressed by its injury reduction program. Unless\notherwise exempted under this act, the employer shall have a written\nwork site evaluation by a competent person for risk factors which have\nor are likely to cause work-related musculoskeletal disorders. Such risk\nfactors shall include, but are not limited to, rapid pace, forceful\nexertions, extreme or static postures, repetitive motions, direct\npressure, contact stress, vibration, or cold temperatures that had\ncaused or are likely to cause work-related musculoskeletal disorders.\n (a) Any worksite evaluations shall also determine whether any\nemployees exposed to such risk factors are subject to either personnel\naction with the potential for adverse action, or adverse action or\ntermination themselves, arising in whole or in part from an employer's\nuse of quotas to determine employee assignments.\n (b) All such worksite evaluations shall incorporate input from workers\nwho regularly perform those jobs, either directly or through an\nemployee-led workplace safety committee, on the possible risk factors\nand any workplace changes that can reduce such risk factors.\n (c) Copies of such worksite evaluations shall be made available to\nworkers and their representatives upon request, at no cost, within one\nbusiness day of such request. Workers and their representatives shall be\nnotified in writing of the results of the worksite evaluation. Employers\nshall maintain accessible copies of such evaluations at locations within\nthe warehouse and shall make such copies readily available to workers.\n (d) An initial worksite evaluation shall be conducted. Worksite\nevaluations shall be reviewed and updated at least annually. A new\nanalysis of risk factors shall be conducted in accordance with the\nprovisions of subdivision one of this section whenever a new job,\nprocess, or operation is introduced which could increase the risk\nfactors for work-related musculoskeletal disorders. Such new analysis\nshall be conducted within thirty days of the creation or change of a\njob, process or operation.\n (e) A worksite evaluation must be reviewed by a board certified\nergonomist when an employee-led workplace safety committee makes a\nwritten request to the employer based upon a material concern related to\nthe findings of a competent person. Where there is no active\nemployee-led workplace safety committee, a worksite evaluation must be\nreviewed by a board certified ergonomist when any employee-led committee\nmakes a formal recommendation based upon a material concern related to\nthe findings of a competent person.\n 3. The employer shall correct in a timely manner any risk factors\nidentified as having caused or being likely to cause work-related\nmusculoskeletal disorders. For any corrections which require more than\nthirty days to complete, the employer shall revise, as needed, and\nprovide a schedule for such proposed corrections. Such schedule shall be\nincluded in the evaluations provided to workers and their\nrepresentatives.\n (a) Where the employer demonstrates that it is unable to eliminate\nidentified risk factors, the employer shall minimize the exposures to\nthe extent feasible.\n (b) In reducing risk factors, the employer shall consider:\n (i) engineering controls and redesigning work stations to change\nshelving heights, provide adjustable fixtures or tool redesign; and\n (ii) administrative controls, such as job rotation which reduces the\nexposure to risk factors, reduced work pacing or additional work breaks.\n (c) Employers shall maintain records of steps taken to eliminate or\nreduce risk factors and shall make copies available to workers and their\nrepresentatives upon request.\n 4. All employers covered by this section shall provide injury\nreduction training to all employees involved in performing manual\nmaterials handling jobs and tasks at the warehouse during normal work\nhours and without suffering a loss of pay. Such training shall be\nprovided in a language and vocabulary that the workers understand and\nshall be repeated annually. The training shall also be provided to the\nworkers' supervisors. Such training shall be in addition to any training\nreceived in accordance with section twenty-seven-d of this chapter and\nshall include:\n (a) The early symptoms of work-related musculoskeletal disorders and\nthe importance of early detection;\n (b) Musculoskeletal disorder ergonomic risk factors and exposures at\nwork, including the hazards posed by excessive rates of work;\n (c) Methods to reduce risk factors for musculoskeletal disorders,\nincluding both engineering controls and administrative controls, such as\nlimitations on work pace and increased scheduled and unscheduled breaks;\n (d) The employer's program to identify risk factors as required under\nthis section and prevent work-related musculoskeletal disorders,\nincluding the summary protocols for medical treatment approved by the\nemployer's medical consultant;\n (e) The rights and function of workplace safety committees established\nunder section twenty-seven-d of this chapter and the rights of employees\nto report any risk factors, other hazards, injuries or health and safety\nconcerns; and\n (f) Training on the unlawful retaliation of any provision in this\nsection, including a reference to the employer's policy requiring\ndisciplinary actions when supervisors or managers violate the law or\npolicy, as well as the employer's policy prohibiting any workplace\ndiscrimination.\n 5. Any on-site location that staffs a medical professional to treat\nworkers in warehouses covered by this section for symptoms of\nwork-related musculoskeletal disorders shall be staffed with medical\nprofessionals operating within their legal scope of practice. Nothing in\nthis section shall infringe on the rights of workers under the opening\nparagraph of subdivision (a) of section thirteen of the workers'\ncompensation law to either select an authorized physician to treat\nemployees and render medical care or to select the continuance of any\nmedical treatment or care by an authorized physician selected by the\nemployee. All examinations and treatments by any medical personnel\nemployed or selected by the employer under section seven hundred\neighty-one of this article shall be performed for the purposes of the\ninjury reduction program and shall not interfere with the rights of\nemployees to receive any medical treatment or any other benefits under\nthe workers' compensation law.\n (a) Employers shall ensure that staffing and the practice of any first\naid or medical station meets state requirements for physician\nsupervision of nurses, emergency medical technicians or other\nnon-physician personnel.\n (b) In all warehouses with on-site medical or first aid providers for\nthe treatment of work-related musculoskeletal disorders, the employer\nshall consult with a medical consultant who is licensed by New York\nstate and board certified in occupational medicine.\n (i) The employer shall obtain from the medical consultant a written\nevaluation of the on-site medical or first aid provider program and\nprotocols followed in the warehouse for identification and treatment of\nwork-related musculoskeletal disorders and shall include recommendations\nto ensure compliance with accepted medical practice of the staffing,\nsupervision and documentation of medical treatment protocols.\n (ii) The employer shall obtain from the medical consultant a summary\nof treatment protocols suitable for worker patients covering all aspects\nof the on-site medical and first aid practices, from early detection of\nwork-related musculoskeletal disorders through evaluation by a qualified\nphysician and physician provision of appropriate work restrictions in\nlanguages understood by the employees.\n (iii) The employer shall ensure that the medical consultant reviews\nthe previous medical consultant evaluation, related materials and\nprotocols on an annual basis, and recommends changes as appropriate.\n (iv) The employer shall ensure that all designated medical and first\naid providers have observed, in person, the jobs involving manual\nmaterials handling within the warehouse and all risk factors identified\nin the evaluation conducted under the medical consultant evaluation.\n (c) There shall be no delays in the provision of adequate medical care\nto workers who report injuries to the on-site medical services.\n (d) Each employer shall ensure that no supervisory or managerial\nemployee or other person discriminates or retaliates against any\ncurrent, former, or prospective employee or other person for reporting a\nwork-related injury or illness, or health and safety concern.\n 6. Employers shall ensure that employees and their designated\nrepresentatives are consulted both before and during the development and\nimplementation of all aspects of the program. Where employees have\nestablished a workplace safety committee in compliance with section\ntwenty-seven-d of this chapter, the employer shall ensure that the\ncommittee is consulted regarding the development and implementation of\nall aspects of the injury reduction program. Any record created by the\nemployer according to this section shall be provided to the workplace\nsafety committee prior to consultation. All ergonomic safety documents\nprovided to employees shall be provided in writing in English and in the\nlanguage identified by each employee as the primary language of such\nemployee. If, prior to the effective date of this section, an employer\nhas formed workplace safety committees in the State of New York through\ncollective bargaining that is currently active, and continuously\nmaintains such safety committees in conjunction with an injury\nprevention program that fully complies with the federal Occupational\nSafety and Health Act, then such employer may instead allow an\nemployee-led workplace safety committee to review or conduct any\nworksite evaluations performed by a competent person. Such injury\nprevention program must be reviewed by a board certified ergonomist\nwhere an employee-led workplace safety committee makes a written request\nto the employer based upon a material concern related to the findings of\na competent person. Where there is no active employee-led workplace\nsafety committee, a worksite evaluation must be reviewed by a board\ncertified ergonomist when any employee-led committee makes a written\nrequest to the employer based upon a material concern related to the\nfindings of a competent person. Such review must be commenced within\nthirty days of receipt of such written request. Copies of revised or new\nworksite evaluations shall be made available to workers and their\nrepresentatives, at no cost, upon request upon completion of such\nworksite evaluation.\n