Seyfarth Synopsis: Expanding a law enacted in 2022, New York’s legislature passed another bill that seeks to limit warehouse-related injuries by requiring employers to establish and implement an injury reduction program, evaluate certain jobs for ergonomic injury risks, correct risk factors, and provide injury reduction training.
Background: New York State’s Commitment to Warehouse Worker Protection
In 2022, New York State passed the Warehouse Worker Protection Act (2022 WWPA). The 2022 WWPA requires covered companies to disclose production quotas to warehouse workers. It also prohibits companies from adopting quotas that would prevent employees from taking legally protected breaks, and prohibits retaliation against employees who do not meet an undisclosed quota. The 2022 WWPA contains a provision allowing employees to request quota-related information without fear of retaliation.
Warehouse Worker Injury Reduction Program: Status and Overview
Passed by both houses of New York’s legislature (Senate and Assembly) but not yet delivered to the Governor for signature, the Warehouse Worker Injury Reduction Program (S5081 / A8907) requires employers to establish an injury reduction program designed to identify and minimize the risks of musculoskeletal injuries and disorders (a/k/a ergonomics injuries) among workers involved in performing manual materials handling tasks.
Citing injury statistics, the bill states that “the warehouse industry in New York state reports a rate of the most serious work-related injuries involving lost time or restricted duty (7.8 cases/100 full-time workers) that is more than five times the average rates of these types of injuries for all private industry in New York state (1.5 cases/100 full-time workers).”
Key Definitions, Coverage, and Effective Date
If signed into law in its current form by the Governor, the bill has an effective date of January 1, 2025.
The bill defines several key terms:
- “Musculoskeletal injuries and disorders” means work related injuries, or disorders, of the muscles, nerves, tendons, ligaments, joints, cartilage of the upper and lower limbs, neck and lower back (including spinal discs) that: (a) are caused by sudden or sustained physical exertion; or (b) are not the result of any instantaneous non-exertion event, such as slips, trips, or falls.
- “Qualified ergonomist” means an ergonomist who can demonstrate proficiency in the core, minimum competencies of ergonomics and injury prevention, as defined by the commissioner. Until the commissioner defines such competencies and approves ergonomists in accordance with such competencies, consultants approved by the commissioner under 12 NYCRR 59 and 60 with a credential as a certified safety professional or certified industrial hygienist shall be deemed to qualify as an ergonomist.
As to coverage, the bill applies to the same “Warehouse Distribution Centers” covered by the 2022 WWPA, but also amends certain portions of Section 780 of the New York Labor Law, which defines covered employers and employees:
- “Employer” means a person who directly or indirectly, or through an agent or any other person, including through the services of a third-party employer, temporary services, or staffing agency, independent contractor, or any similar entity, employs or exercises control over the wages, hours, or working conditions of one hundred or more employees at a single warehouse distribution center or one thousand or more employees at one or more warehouse distribution centers in the state.
- “Employee” means an employee who is not exempt from the minimum
wage and any overtime compensation provisions of this chapter and any
applicable minimum wage orders and who works at a warehouse distribution center and is subject to a quota as defined in this section; provided, however, that “employee” does not include a driver or courier to or from a warehouse distribution center.
Requirements: Program, Evaluation, Training, Consultation
The law imposes several key requirements on employers, effective January 1, 2025 if the Governor signs the bill without altering it. Each is outlined below.
- Injury Reduction Program. Covered employers must establish and implement 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. The program must include:
- worksite evaluation;
- control of exposures, including pace, which have caused or have the potential to cause musculoskeletal injuries and disorders;
- employee training;
- on-site medical and first aid practices; and
- employee involvement.
- Written Work Site Evaluation. Covered employers must ensure that each job, process, or operation of work activity covered by this section or a representative number of such jobs, processes, or operations of identical work activities shall have a written work site evaluation by a qualified ergonomist for risk factors which have or are likely to cause musculoskeletal injuries and disorders. Such risk factors shall include but are not limited to:
- rapid pace,
- forceful exertions,
- repetitive motions,
- twisting,
- bending, and
- awkward postures and combinations thereof that caused or are likely to cause musculoskeletal injuries and disorders.
Such evaluations must be conducted initially and “reviewed and updated” at least annually. Further, employers must provide copies of the evaluations to employees upon request, within one business day.
- Fix Risk Factors. Covered employers must correct, in a timely manner, any risk factors identified as having caused or being likely to cause musculoskeletal injuries and 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. The schedule shall be included in the evaluations provided to workers and their representatives.
- Injury Reduction Training. Covered employers must 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. The training must include:
- (a) The early symptoms of musculoskeletal injuries and disorders and the importance of early detection;
- (b) Musculoskeletal injury and disorder risk factors and exposures at work, including the hazards posed by excessive rates of work;
- (c) Methods to reduce risk factors for musculoskeletal injuries and 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 musculoskeletal injuries and 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 the disciplinary actions required when supervisors or managers violate the law or policy, as well as the employer’s policy prohibiting any workplace discrimination.
- Medical Office/First Aid Staffing. Any on-site medical office or first aid station in covered warehouses that sees workers with symptoms of musculoskeletal injuries and disorders shall be staffed with medical professionals operating within their legal scope of practice.
- Consultation with Employees. Covered employers must ensure that employees and their designated representatives are consulted both before and during the development and implementation of all aspects of the program.
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