2023 New York Laws › LAB - Labor › Article 2 - The Department of Labor › 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.
* NB Effective until enactment of legislation  by  the  state  of  New
Jersey
* a. "Employer"  means  the  state,  any  political subdivision of the
state, a public authority, a bi-state authority utilizing its own police
officers  or  firefighters  or  any   other   governmental   agency   or
instrumentality thereof.
* NB  Effective  upon  enactment  of  legistlation by the state of New
Jersey
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.
* NB Effective until enactment of legislation  by  the  state  of  New
Jersey
* d. "Public  employee" means any employee of the state, any political
subdivision of the state,  a  public  authority,  a  bi-state  authority
utilizing   its  own  police  officers  or  firefighters  or  any  other
governmental agency or instrumentality.
* NB Effective upon enactment of  legislation  by  the  state  of  New
Jersey
e.  "System  components"  means  life safety harness, belts, ascending
devices, carabiners, descent control  devices,  rope  grab  devices  and
snap-links.
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.  Except for an employer located in a city with a population of over
one million, any employer who employs a firefighter determined to be  at
risk  of entrapment at elevations pursuant to regulations promulgated by
the commissioner, shall provide emergency escape systems for use by such
firefighter.  The  commissioner  shall  by  rule  identify  the   codes,
standards  and  recommended  practices  of  the National Fire Protection
Association and other appropriate standards approved by the commissioner
as are appropriate to the nature of the risk to  which  the  firefighter
shall  be exposed and shall, at a minimum, include in such rule language
requiring employers to (1) identify  whether  firefighters  employed  by
them  would be exposed to the hazard of entrapment at elevated surfaces;
(2) identify those firefighters who would be exposed to the hazard;  and
(3)  determine  the  appropriate emergency escape systems to address the
hazard. Such emergency escape systems shall be adequate to  protect  the
health and safety of the firefighter. The employer shall ensure that the
firefighter  is  instructed  in  the  proper use of the emergency escape
systems.  As  used  in  this  subdivision,  the  term   "entrapment   at
elevations"  shall  mean  a  situation  where  a fire or other emergency
conditions require a firefighter inside a structure to immediately  exit
the  structure  but  where such conditions make the normal route of exit
unusable, thereby requiring the firefighter to exit the  structure  from
an opening that is not designed as an exit and is above the ground floor
or  at  an elevation above the surrounding terrain that would reasonably
be expected to cause injury to a firefighter exiting by  means  of  this
opening   without   any  emergency  escape  systems.  As  used  in  this
subdivision, the term "emergency escape system" shall mean safety  ropes
and  system  components  and any other system that (1) is compliant with
the codes, standards and recommended  practices  of  the  National  Fire
Protection  Association  or other appropriate standard identified by the
commissioner through regulation, as a  means  of  emergency  self-rescue
from  an  above  grade,  immediately hazardous environment, (2) has been

certified by a nationally recognized safety  testing  and  certification
organization,   and   (3)   the   commissioner  has  recognized  through
regulation.
In  order  to ensure the adequacy of the emergency escape systems, the
employer must routinely inspect and ensure that:
(1) Existing emergency escape systems meet the  codes,  standards  and
recommended practices adopted by the commissioner.
(2) Existing emergency escape systems still perform their function and
to identify any of their limitations such as but not limited to:
(i) Checking the labels or stamps on the equipment; and
(ii) Checking any documentation or equipment specifications; and
(iii) Contacting the supplier or the approval agency;
(3)  Firefighters  are informed of the limitations of emergency escape
systems;
(4) Firefighters are not allowed or  required  to  use  any  emergency
escape systems beyond their limitations;
(5)  Existing and new emergency escape systems have no visible defects
that limit their safe use;
(6) Emergency escape systems are used, cleaned, maintained and  stored
according to manufacturer's instructions;
(7)  The  firefighter is instructed in identifying to the employer any
defects that the firefighter may find in emergency escape systems; and
(8) Any identified defects are corrected or immediate action is  taken
by the employer to eliminate the use of this equipment.
d. 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.
6-a.  Form  of  complaints. The department shall establish a dedicated
webpage through which any public employee under the jurisdiction of this
section may report alleged or believed  violations  of  any  state  law,
regulation,  rule  or guidance related to occupational health and safety
involving a communicable disease, including but not limited to the novel
coronavirus COVID-19. Such webpage shall  allow  individuals  to  report
alleged or believed violations anonymously.
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.