NY Work Comp L § 134 (2021)
2021 New York Laws WKC - Workers' Compensation Article 7 - Miscellaneous Provisions. 134 - Workplace 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.