Compulsory Workplace Safety and NYS Legislative Bill 11331.
You have received a letter from the New York State Compensation Insurance Rating Bureau (NYCIRB) and the Reference is Compulsory Workplace Safety and Loss Prevention Program. The opening paragraph starts with reference to Legislative Bill 11331, which is a worker’s compensation reform bill signed into law in 1996. You got this notice because you have payroll in excess of $800,000, and as the letter states, you have an Experience Modification Factor (Exp. Mod.) of 1.20 or greater. Don’t be alarmed!!! But now you need to take action. Contact your broker of agent. Reach out to McGuinness Consulting too. Its a team effort to do a great job in responding to this notice and delivering a great product you can use to improve your Experience Mod.
You, as the employer, are obliged to engage a New York State Department of Labor Certified Consultant to perform an Industrial Code Rule 59 Consult (ICR59).
Contracting with an ICR59 Consultant must be taken within 30 days of receiving the letter. Hopefully, preferably its me, but you can find them at the NYSDOL Website and/or your broker/agent might know someone they have worked with.
Once you have chosen your consultant you must notify your insurance carrier of your choice within 40 days of receiving the letter.
If you are an employer with a small payroll ($800,000 to $2,000,000 {$2,000,000 x $0.45=$9,000}), or a payroll that does not generate much in the way of WC premium ($5,000,000 x $0.27 =$13,500), it is likely you had one or maybe two losses over the previous three years that triggered the adverse Exp. Mod. This Exp. Mod. can be explained away by identifying the “at fault” nature of the loss (auto accidents) or developing or modifying a safety program. On the other hand, if you are an employer with a significant payroll generating, significant premium, you are likely to have some underlying safety or operational issues which need to be identified and addressed through modifications to the work, or work environment.
The Consultant has up until 75 days from the notice date of the letter to perform his/her work and deliver a written report to you, the employer. Be sure you and your people are part of the process.
When the Consultant delivers the report there must be a cover letter providing guidance to the employer as to what steps need be taken, and the names and addresses of all those to be contacted.
If the program is found to be compliant no further action needs to be taken.
If the program is found non-compliant, the cover letter will have a list of items that the employer must address to make the program compliant with NYSDOL requirements: The 12 Elements.
Such program shall be in writing and shall at a minimum contain and reference the following:
1. Set forth policies, procedures and practices that recognize and protect employees from occupational safety hazards.
2. Establish and communicate a clear goal for the workplace safety and loss prevention program and the mechanisms which will be utilized in meeting this goal.
3. Provide for visible top management leadership in implementing the program and ensure that all workers at the site are provided equally high quality safety protection, so that all will understand that management's commitment is serious.
4. Provide for and encourage employee involvement in the structure and operation of the program, so that they will commit their insight and energy to achieving the goals and objectives of the safety program. Such involvement shall be accomplished through the recognized employee organization(s), if any.
5. Assign and communicate responsibilities for all aspects of the workplace safety and loss prevention program to managers, supervisors and employees so that such persons know and understand what is expected of them in the such implementation of the program. Provide a system to hold managers and supervisors accountable for their responsibilities under the workplace safety and loss prevention program.
6. The employer shall ensure that the supervisors, managers and employees understand their responsibilities under the workplace safety and loss prevention program and their importance to the safety of the workplace. In particular, appropriate training for managers, supervisors and employees shall enable them to:
i. recognize potential hazards;
ii. maintain safety protection in the work area; and,
iii. reinforce employee training on the nature of the potential hazards and required protective measures.
7. Provide a reliable system for employees to notify management personnel of conditions that appear hazardous or of non-compliance with the terms of the workplace safety and loss prevention program without fear of reprisal and provide a mechanism to ensure timely and appropriate responses.
8. Provide a mechanism to investigate accidents so that the root cause(s) and means for preventing a recurrence are identified. For the purposes of this rule, the term "accident" shall mean any unexpected happening that interrupts the work sequence or process and that may result in injury, illness or property damage.
9. Provide a means to review injury and illness trends over time so that patterns with common causes can be identified and eliminated.
10. Establish a mechanism for the employer to conduct ongoing, periodic in-house safety inspections so that new or previously missed hazards or failures in controls are identified. Such inspections shall be conducted with a frequency necessary to be effective and this frequency shall be reviewed by the consultant performing the workplace safety and loss prevention consultation.
11. Address the impact of emergency situations and develop written plans and procedures to insure employee safety during such emergencies. For the purposes of this rule, the term "emergency situation" shall mean an unforeseen single event or combination of events that calls for immediate action to prevent, control or contain injury or illness to person(s) or damage to property.
12. Establish procedures for transmitting and enforcing safe work practices in the workplace through training, positive reinforcement and correction of unsafe performance.
