New York § 134 - 134Workplace safety and loss prevention program; certification of safety and loss management specialists

§ 134. 134Workplace 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.