|
|
|
State Law
Federal Law
|
New York Labor Law Section 27-a - Safety And Health Standards For Public Employees.Legal Research Home > New York Lawyer > Labor > New York Labor Law Section 27-a - Safety And Health Standards For Public Employees.
§ 27-a. Safety and health standards for public employees. 1.
Definitions. As used in this section:
a. "Employer" means the state, any political subdivision of the state,
a public authority or any other governmental agency or instrumentality
thereof.
b. "Employees" means persons permitted to work by an employer.
c. "Authorized employee representative" means an employee authorized
by the employees or the designated representative of an employee
organization recognized or certified to represent the employees pursuant
to article fourteen of the civil service law.
d. "Public employee" means any employee of the state, any political
subdivision of the state, a public authority or any other governmental
agency or instrumentality.
2. Application. A safety or health standard promulgated under the
provisions of this section shall apply to every public employee and the
commissioner shall have exclusive authority to enforce such standard in
accordance with the provisions of this chapter, notwithstanding any
other safety or health standard or any other provision in this chapter
or in any other general, local or special law or charter. However, this
section shall not supersede any inconsistent provision of the education
law, as applied to any school building certified by the commissioner of
education as being in compliance with such law, and the regulations
promulgated pursuant thereto, on the effective date of this section, or
as applied to any application for certification which is pending before
the effective date of this section.
3. Duties. a. Every employer shall: (1) furnish to each of its
employees, employment and a place of employment which are free from
recognized hazards that are causing or are likely to cause death or
serious physical harm to its employees and which will provide reasonable
and adequate protection to the lives, safety or health of its employees;
and (2) comply with the safety and health standards promulgated under
this section. In applying this paragraph, fundamental distinctions
between private and public employment shall be recognized.
b. Every employee shall comply with the safety and health standards
and all rules, regulations and orders issued pursuant to this section
which are applicable to his own actions and conduct.
c. The state shall promulgate a plan for the development and
enforcement of occupational safety and health standards with respect to
public employers and employees, in accordance with section eighteen (b)
of the United States Occupational Safety and Health Act of 1970 (Public
Law 91-596) which provides: "(b) Any State which, at any time, desires
to assume responsibility for development and enforcement therein of
occupational safety and health standards relating to any occupational
safety or health issue with respect to which a Federal standard has been
promulgated under section 6 shall submit a State plan for the
development of such standards and their enforcement."
4. Safety and health standards. a. The commissioner shall by rule
adopt all safety and health standards promulgated under the United
States Occupational Safety and Health Act of 1970 (Public Law, 91-596)
which are in effect on the effective date of this section, in order to
provide reasonable and adequate protection to the lives, safety and
health of public employees and shall promulgate and repeal such rules
and regulations as may be necessary to conform to the standards
established pursuant to such act or pursuant to paragraph b of this
subdivision.
b. Notwithstanding the provisions of paragraph a of this subdivision,
the commissioner, in consultation with the state occupational safety and
health hazard abatement board, shall promulgate rules and regulations
recommended to him by such board which establish standards whenever such
board finds (i) that no federal standard exists for the particular
condition being addressed and that such a standard is necessary for the
protection of the public employees at risk, or (ii) a federal standard
exists, but conditions in public workplaces in this state require a
different standard, and such state standard will be at least as
effective in providing safe and healthful places of employment as the
federal standard.
c. Any person who may be adversely affected by a standard issued under
this section may, within thirty days after the effective date of such
standard, commence a proceeding for judicial review pursuant to article
seventy-eight of the civil practice law and rules.
5. Inspections. a. Any employee or representative of employees who
believes that a violation of a safety or health standard exists, or that
an imminent danger exists, may request an inspection by giving notice to
the commissioner of such violation or danger. Such notice and request
shall be in writing, shall set forth with reasonable particularity the
grounds for the notice, shall be signed by such employee or
representative of employees, and a copy shall be provided by the
commissioner to the employer or the person in charge no later than the
time of inspection, except that on the request of the person giving such
notice, his name and the names of individual employees or
representatives of employees shall be withheld. Such inspections shall
be made forthwith.
b. A representative of the employer and an authorized employee
representative shall be given the opportunity to accompany the
commissioner during an inspection for the purpose of aiding such
inspection. Where there is no authorized employee representative, the
commissioner shall consult with a reasonable number of employees
concerning matters of safety and health in the workplace.
c. The authority of the commissioner to inspect a premises pursuant to
such an employee complaint shall not be limited to the alleged violation
contained in such complaint. The commissioner may inspect any other area
of the premises in which he has reason to believe that a violation of
this section exists.
d. No employee who accompanies the commissioner on an inspection shall
suffer any reduction in wages.
e. The commissioner may, upon his own initiative, conduct an
inspection of any premises occupied by a public employer if he has
reason to believe that a violation of this section has occurred or if he
has a general administrative plan for the enforcement of this section,
including general schedule inspections, which provide a rational
administrative basis for such inspecting. Within ninety days of
enactment of this paragraph the commissioner shall publish the general
administrative plan and shall adopt regulations on the conduct of
inspections in locker rooms and other areas involving the personal
property and privacy rights of public employees.
f. Any information obtained by the commissioner under this section
shall be obtained with a minimum burden upon the employers.
5-a. Notwithstanding any other provisions of law, when a request for
an inspection has been made in a situation where there is an allegation
of an imminent danger such that an employee would be subjecting himself
or herself to serious injury or death because of the hazardous condition
in the workplace, the inspection shall be given the highest priority by
the department and shall be carried out immediately.
6. Enforcement procedures. a. If the commissioner determines that an
employer has violated a provision of this section, or a safety or health
standard or regulation promulgated under this section, he or she shall
with reasonable promptness issue to the employer an order to comply
which shall describe particularly the nature of the violation including
a reference to the provision of this section, standard, regulation or
order alleged to have been violated, shall fix a reasonable time for
compliance and may establish the penalty to be assessed for failure to
correct the violation by the time fixed for compliance. An employer who
fails to correct a non-serious violation by the time fixed for
compliance may be assessed a civil penalty of up to fifty dollars per
day until the violation is corrected. An employer who fails to correct a
serious violation by the time fixed for compliance may be assessed a
civil penalty of up to two hundred dollars per day until the violation
is corrected. Pursuant to section 18(k) of the United States
Occupational Safety and Health Act of 1970 (Public Law, 91-596), a
serious violation shall be deemed to exist in a place of employment if
there is a substantial probability that death or serious physical harm
could result from a condition which exists, or from one or more
practices, means, methods, operations, or processes which have been
adopted or are in use, in such place of employment unless the employer
did not, and could not with the exercise of reasonable diligence, know
of the presence of the violation. A non-serious violation shall be
defined as any violation that does not fall under the definition of
serious violation. The commissioner shall not assess a penalty against
an employer for failure to correct a violation of a standard which is
the subject of an application for a temporary order granting a variance
or a violation which is the subject of a petition to modify an order to
comply, provided however, that upon issuance by the commissioner of a
determination denying such variance or petition to modify, or upon
expiration of a temporary variance or modified compliance period, the
time fixed for compliance shall recommence and the employer become
liable for the penalties provided herein.
b. Where the commissioner issues to an employer an order to comply,
the employer shall post such order or a copy thereof in a conspicuous
place at or near each place of violation cited in the order, where it is
clearly visible to affected employees. The commissioner shall make such
order available to employee representatives.
c. Any employer, or other party affected by a determination of the
industrial commissioner issued pursuant to this section may petition the
industrial board of appeals for review of such determination in
accordance with section one hundred one of this chapter. Judicial review
of the decision of the industrial board of appeals may be obtained by
any party affected by such decision by commencing a proceeding pursuant
to article seventy-eight of the civil practice law and rules within
sixty days after such decision is issued.
d. If the time for compliance with an order of the commissioner issued
pursuant to this section has elapsed, and the employer has not complied
with the provisions of the order, the commissioner shall seek judicial
enforcement of such order by commencing a proceeding pursuant to article
seventy-eight of the civil practice law and rules. Where an employer has
complied with an order in all respects other than the payment of a
penalty imposed pursuant to this subdivision, the commissioner may file
with the county clerk of the county where the employer has its place of
business the order of the commissioner continuing the amount of civil
penalty found to be due. The filing of such order shall have the full
force and effect of a judgment duly docketed in the office of such
clerk. The order or decision may be enforced by and in the same manner,
and with like effect, as that prescribed by the civil practice law and
rules for the enforcement of a money judgment.
7. Injunction proceedings. a. The supreme court of the state shall
have jurisdiction, upon petition of the industrial commissioner,
pursuant to the civil practice law and rules to restrain any conditions
or practices in any place of public employment which are such that a
danger exists which could reasonably be expected to cause death or
serious physical harm immediately or before the imminence of such danger
can be eliminated through the abatement procedures otherwise provided
for by this section. Such proceeding shall be brought in the county in
which the violation is alleged to exist. Any order issued under this
section may require such steps to be taken as may be necessary to avoid,
correct or remove such imminent danger and prohibit the employment or
presence of any individual in locations or under conditions where such
imminent danger exists, except individuals whose presence is necessary
to avoid, correct, or remove such imminent danger or to maintain the
capacity of a continuous process operation to resume normal operations
without a complete cessation of operations, or where a cessation of
operations is necessary, to permit such to be accomplished in a safe and
orderly manner. The employer may contest such order pursuant to the
civil practice law and rules.
b. Whenever and as soon as an inspector concludes that conditions or
practices described in paragraph a of this subdivision exist in any
place of public employment, he shall inform the affected employees and
employers of the danger and that he is recommending to the industrial
commissioner that relief be sought.
c. If the industrial commissioner fails to seek relief under this
section within forty-eight hours of being notified of such condition,
any employee who may be injured by reason of such failure, or the
authorized employee representative of such employees, may seek
injunctive relief as provided in paragraph a of this subdivision.
8. Variances. a. Any employer may apply to the commissioner for a
temporary order granting a variance from a standard or any provision
thereof promulgated under this section. Such temporary order shall be
granted only if the employer files an application which meets the
requirements of paragraph b of this subdivision and establishes that (1)
he is unable to comply with a standard by its effective date because of
unavailability of professional or technical personnel or of materials
and equipment needed to come into compliance with the standard or
because necessary construction or alteration of facilities cannot be
completed by the effective date, (2) he is taking all available steps to
safeguard employees against the hazards covered by the standard, and (3)
he has an effective program for coming into compliance with the standard
as quickly as practicable. Any temporary order issued under this
subdivision shall prescribe the practices, means, methods, operations
and processes which the employer must adopt and use while the order is
in effect and state in detail his program for coming into compliance
with the standard. Such a temporary order may be granted only after
notice to employees and an opportunity for a hearing, provided the
commissioner may issue one interim order to be effective until a
decision is made on the basis of the hearing. No temporary order may be
in effect for longer than the period needed by the employer to achieve
compliance with the standard or one year, whichever is shorter, except
that such an order may be renewed not more than twice so long as the
requirements of this subdivision are met and if an application for
renewal is filed at least ninety days prior to the expiration date of
the order. No interim renewal of an order may remain in effect longer
than one hundred and eighty days.
b. An application for a temporary variance order shall contain: (1) a
specification of the standard or portion thereof from which the employer
or owner seeks a variance; (2) a representation by the employer,
supported by representations from qualified persons who have firsthand
knowledge of the facts represented, that he is unable to comply with the
standard or portion thereof and a detailed statement of the reasons
therefor; (3) a statement of the steps he has taken and will take, with
specific dates, to protect employees against the hazard covered by the
standard; (4) a statement of when he expects to be able to comply with
the standard and what steps he has taken and what steps he will take,
with dates specified, to come into compliance with the standard; and (5)
a certification that he has informed his employees of the application by
giving a copy thereof to their authorized representative, posting a
statement giving a summary of the application and specifying where a
copy may be examined at the place or places where notices to employees
are normally posted, and by other appropriate means. A description of
how employees have been informed shall be contained in the
certification. The information to employees shall also inform them of
their right to petition the commissioner for a hearing. The commissioner
is also authorized to grant a variance from any standard or portion
thereof whenever he determines that such variance is necessary to permit
an employer to participate in an experiment approved by him designed to
demonstrate or validate new and improved techniques to safeguard the
health or safety of workers.
c. Any affected employer may apply to the commissioner for a rule or
order for a variance from a standard promulgated under this section.
Affected employees shall be given notice of each such application and an
opportunity to participate in a hearing. The commissioner shall issue
such rule or order if he determines on the record, after opportunity for
an inspection where appropriate and a hearing, that the proponent of the
variance has demonstrated by a preponderance of the evidence that the
conditions, practices, means, methods, operations or processes used or
proposed to be used by an employer will provide employment and places of
employment which are as safe and healthful as those which would prevail
if he complied with the standard. The rule or order so issued shall
prescribe the conditions the employer must maintain, and the practices,
means, methods, operations and processes which he must adopt and utilize
to the extent they differ from the standard in question. Such a rule or
order may be modified or revoked upon application by an employer, any
employee or employee representative, or by the commissioner on his own
motion, in the manner prescribed for its issuance under this subdivision
at any time after six months from its issuance.
d. Any person, who may be adversely affected by a rule or order issued
under this subdivision may challenge the validity or applicability of
such rule or order by commencing, within sixty days, a proceeding
pursuant to article seventy-eight of the civil practice law and rules.
9. Recordkeeping. a. In accordance with the commissioner's
regulations, each employer shall make, keep and preserve, and make
available to the commissioner such records regarding his activities
relating to this section as the commissioner deems necessary or
appropriate for developing information regarding the causes and
prevention of occupational accidents and illness. Such regulations may
include provisions requiring employers to conduct periodic inspections.
The commissioner shall also issue regulations requiring that employers,
through posting of notices, training or other appropriate means, keep
their employees informed of their protections.
b. The commissioner shall prescribe regulations requiring employers to
maintain accurate records and to make public periodic reports of
work-related deaths, and injuries and illnesses other than minor
injuries requiring only first aid treatment and which do not involve
lost time from work, medical treatment, loss of consciousness,
restriction of work or motion or transfer to another job.
c. The commissioner shall issue regulations requiring employers to
maintain accurate records of employee exposures to potentially toxic
materials or harmful physical agents which the regulation requires to be
monitored or measured. Such regulations shall provide employees or their
representatives with an opportunity to observe such monitoring or
measuring and have access to the records thereof. Such regulations shall
also make appropriate provisions for each employee or former employee to
have access to such records as will indicate his own exposure to toxic
materials or harmful physical agents. Each employer shall promptly
notify any employee who has been or is being exposed to toxic materials
or harmful physical agents in concentrations or at levels which exceed
those prescribed by any safety and health standard promulgated under
this section, and shall inform any employee who is being exposed of the
corrective action being taken and the time limit for correction.
10. Discrimination against employees. a. No person shall discharge, or
otherwise discipline, or in any manner discriminate against any employee
because such employee has filed any complaint or instituted or caused to
be instituted any proceeding under or related to this section or has
testified or is about to testify in any such proceeding, or because of
the exercise by such employee on behalf of himself or others of any
right afforded by this section.
b. Any employee who believes that he has been discharged, disciplined,
or otherwise discriminated against by any person in violation of this
subdivision may, within thirty days after such violation occurs, file a
complaint with the commissioner alleging such discrimination. Upon
receipt of such complaint, the commissioner shall cause such
investigation to be made as he deems appropriate, and shall, if
requested withhold the name of the complainant from the employer. If
upon such investigation, the commissioner determines that the provisions
of this subdivision have been violated, he shall request the attorney
general to bring an action in the supreme court against the person or
persons alleged to have violated the provisions of this subdivision. In
any such action the supreme court shall have jurisdiction, for cause
shown, to restrain violations of this subdivision and order all
appropriate relief, including rehiring or reinstatement of the employee
to his former position with all back pay.
c. Within ninety days of this receipt of a complaint filed under this
subdivision the commissioner shall notify the complainant and his
representative by registered mail of his determination.
d. Nothing in this subdivision shall be deemed to diminish the rights
of any employee under any law, rule or regulation or under any
collective bargaining agreement.
11. Wherever notice is required to be given to an authorized employee
representative under this section, notice shall be given to all
organizations representing employees at the worksite in question. Notice
should be given to the office of the employee representative as well as
to the representative at the worksite. Representatives who wish this
dual notice must inform the department of the person who is to be
notified. Such notice shall be in writing unless the inspection is being
conducted under subdivision five-a of this section.
12. The commissioner may initiate voluntary compliance programs,
including, but not limited to, a public employee consultation program to
provide on-site consultation to public employers desiring such services
as an adjunct to the commissioner's inspections pursuant to this
section. Whenever an on-site consultation is performed under this
subdivision, a report shall be issued of any findings of noncompliance
with the regulations promulgated under this section and the report shall
be made public.
13. Regulations. The commissioner may promulgate such procedural
regulations as he shall consider necessary and proper to effectuate the
purposes and provisions of this section.
14. A commission to report on the operation and effect of this section
is hereby established. a. Such commission shall examine the incidence of
work related injuries, the incidence of injuries to the public, and the
effect of this section upon insurance costs of public employers. Such
commission shall be empowered to recommend additional or corrective
legislation to advance the purposes of this section.
b. Such commission shall be composed of three members, one of whom
shall be chosen by the speaker of the assembly, one of whom shall be
chosen by the temporary president of the senate, and one of whom shall
be chosen by the governor.
c. Members of the commission shall serve without compensation, except
for expenses reasonably incurred in the discharge of their duties under
this subdivision.
d. The commission shall issue an interim report to the legislature and
the governor, which report shall be issued one year after the effective
date of this section. A final report shall be issued two years after
such effective date.
15. New York state occupational safety and health hazard abatement
board; creation and procedure. a. The New York state occupational safety
and health hazard abatement board is hereby created to have and exercise
the powers, duties and prerogatives provided by the provisions of this
subdivision.
b. The membership of the board shall consist of five persons appointed
by the governor of whom one shall be upon the recommendation of the
temporary president of the senate, one upon the recommendation of the
speaker of the assembly, and one upon the recommendation of the state
comptroller. Members shall serve at the pleasure of the governor, and
the governor may replace any member in accordance with the provisions
contained herein for the appointment of members.
The governor shall designate one of the members to serve as chairman.
The board shall act by a majority vote of its members, and a quorum to
conduct business shall consist of three members. Any determination of
the board shall be evidenced by a certification thereof executed by all
the members present and voting. Each member of the board shall be
entitled to designate a representative to attend meetings of the board
in his place, and to vote or otherwise act on his behalf in his absence.
Such representative shall not be authorized to delegate any of his
duties or functions to any other person. Notice of such designation
shall be furnished in writing to the board by the designating member. A
representative shall serve at the pleasure of the designating member
during the member's term of office.
c. No elected public officer or public employee shall be eligible for
appointment as a member of the board.
d. The members of the board and their representatives shall serve
without salary or per diem allowance but shall be entitled to
reimbursement for actual and necessary expenses incurred in the
performance of their official duties pursuant to this section, provided
however that such members and representatives are not, at the time such
expenses are incurred, public employees or public officers otherwise
entitled to such reimbursement.
e. The board shall meet at least four times a year with at least one
meeting in each calendar quarter. The chairman shall designate the days
of meeting, and shall provide each member with at least three weeks
written notice of the date of such meeting.
f. Staff services for the board shall be performed insofar as
practicable, by personnel of the department of labor. Additional
professional and technical services may be secured from other state
departments or agencies, with the consent of the head of such department
or agency.
16. New York state occupational safety and health hazard abatement
board; powers and duties. (A) a. The board created pursuant to
subdivision fifteen of this section shall have the power, and it shall
be its duty to receive, review and act upon applications for funding of
capital projects designed to abate occupational safety and health
hazards which have been found by the commissioner to violate the
provisions of this section or which have been identified in a report of
the public employee consultation program. The board shall fund
seventy-five percent of the cost of any capital abatement project
necessary to comply with an order issued by the commissioner pursuant to
the provisions of this section or with a recommendation for hazard
abatement issued by the public employee consultation program.
b. In determining the order in which applicants shall receive grants
from the fund, and the amount of such funding, the board shall consider
the following factors:
(1) the degree of possible physical harm which the hazard to be abated
could inflict on the public employees and other citizens at risk;
(2) the imminent nature of the possible infliction of harm;
(3) the number of public employees and other citizens at risk;
(B) a. The board shall have the power, and it shall be its duty to
receive, review, and act upon applications for funding for programs
designed to provide occupational safety and health training and
education for employees pursuant to the provisions of article
twenty-nine of this chapter.
b. The board shall, by the promulgation of rules and regulations,
establish procedures and criteria that are necessary and appropriate to
carry out the provisions of article twenty-nine of this chapter, which
shall include criteria for the evaluation and selection of applications
for grants and the auditing of performance thereunder.
(C) a. The board may require as part of such applications made
pursuant to the provisions of this subdivision such information as it
deems necessary and shall act upon such applications within a reasonable
time. The board shall furnish the state budget director, state
industrial commissioner, state comptroller, temporary president of the
senate and speaker of the assembly with a copy of each application
within three days following receipt thereof by the board.
b. That a employer has applied for funds pursuant to the provisions of
this subdivision shall not relieve that employer of the obligation to
correct any violation of this section by variance or other means.
(D) a. The board, in the formulation of standards pursuant to
paragraph b of subdivision four of this section, shall have the power to
conduct public hearings, administer oaths and take sworn or unsworn
testimony at such hearings. The board may, by subpoena issued by the
chair, compel the attendance of witnesses and the production of all
books, records and other evidence relative to any matter under inquiry
in the formulation of such standards.
b. The board may contract with occupational health professionals and
industrial safety engineers to provide expert assistance in the
formulation of standards pursuant to paragraph b of subdivision four of
this section.
c. The board is authorized, after public hearings, to recommend
standards to the commissioner. The board, in addition to acting on its
own initiative, shall review, consider and make recommendations
regarding requests for new standards presented to such board by public
employers, employees or authorized employee representatives.
New York Lawyers
Last modified: July 30, 2006 |