Statutory Authority: Article 2, Section 27-b of the Labor Law requires public employers to develop and implement programs to prevent workplace violence. The law also requires the Commissioner of Labor to promulgate rules and regulations to implement the law within 120 days of its effective date, March 4, 2007.

The Commissioner is given broad authority to promulgate safety and health rules and regulations in sections 27-a and 27-b of the Labor Law. Broader authority is granted in Sections 200, 211 and 215 of the Labor Law.

Legislative Objectives: Article 2, Section 27-b of the Labor Law requires public employers to implement programs to minimize the hazard of workplace violence. The proposed rule will clarify the methods employers must utilize to meet the intent of the law. The Legislative findings for chapter 82 provide that the legislature finds and declares that workplace assaults and homicides are a serious public health problem that demands the attention of the State of New York. During the last decade, homicide was the third leading cause of death for all workers and the leading cause of occupational death for women workers.

Justification provided in the Bill Sponsor's Memo stated: Workplace violence is an increasingly visible element in today's workplaces. This Bill would assist both employers and employees in ensuring a safe work environment. Workplace violence is now one of the leading causes of death on the job in the United States.

Needs and Benefits: The purpose as expressed in the Legislative finding states that workplace homicides and assaults are a serious public health problem that demands the attention of the State of New York. The Legislative finding further states that, over the last decade, homicides are the third leading cause of death for all workers and the leading cause of occupational death for women.

The National Institute of Occupational Safety and Health indicates that hospital workers are at a high risk of violence. They report in their publication Occupational Hazards in Hospitals, DHHS (NIOSH) Pub No. 2002-101, that according to the Bureau of Labor Statistics (BLS) 2,637 Non Fatal workplace assaults on hospital workers occurred in 1999 at a rate of 8.3 assaults per 10, 000 workers. This rate is much higher than the rate for non fatal assaults for all private sector industries, which is 2 per 10,000 workers.

A large number of New York public sector employees are employed in the health care or mental health fields.

The National Institute of Occupational Safety and Health presented study results in their report “Violence In The Workplace, Risk Factors and Prevention Strategies” DHHS (NIOSH) Publication Number 96-100.

The subject was again studied and an advisory document was published by the Department of Justice, Federal Bureau of Investigation, National Center for the Analysis of Violent Crime. Entitled “Workplace Violence, Issues in Response”. Many of the recommendations of this study were incorporated into the proposed rule and regulation.

The implementation of workplace violence prevention programs will decrease the number of violent incidents in the workplace with the corresponding reduction of lost time and the expense of replacing injured employees during the time necessary to recover, and related workers compensation benefits.

Costs: Cost is restricted to State and local government; there is no cost to private industry. Currently all state facilities and in particular those in corrections and mental health have comprehensive programs of one form or another which deal with the protection of employees from assault. The modification of these policies can be accomplished at a minimal cost and those of many larger state facilities will need no changes at all.

The cost to counties may also be minimal in that most have implemented safety policies, particularly in their higher risk facilities (Nursing facilities, Jails, Social Service Offices, legislative facilities). Many local governments may incur costs in developing a compliant plan but the hazards are not as great and many local governments do not provide the high risk services such as corrections social and mental health services provided by county governments.

Cost is mitigated by the lowering of injury rates in many of the high risk facilities covered. This is translated into less workers' compensation benefits and leave, less overtime to cover shifts of injured employees and fewer disability benefits distributed.

The costs incurred by the Department in responding to complaints and injuries or homicides will be reduced as employers develop compliant plans.

The annual training requirement, while adding to the cost of implementation was required by the legislation. Annual training would be necessary to insure that employees are updated on any changes made to the plan as a result of reported incidents.

Government agencies may elect to share resources in the development of the plan and employee training where risks and abatement methods are the same.

Local Government Mandates: The entire law is applied only to the state and local governments. It would be classified as an unfunded obligation of public employers.

The act does not apply to public schools as defined in Section 2801a of the Education Law.

Local governments who operate higher risk facilities such as Social Services Offices, Jails, and Police Departments will eventually see savings through reduced injuries and compensation costs if an effective program is developed and implemented.

Relief was provided to small government entities as no written program is required if the employer employs less than 20 employees. The rule is written so that the smaller the employer and the lower the risk, the less an employer has to do to conform to the rule.

Local governments and all other public employers may elect to share resources in the development and implementation of their workplace violence prevention program.

Paperwork: The proposed rule will require the employer to develop and post a short Policy Statement. The statement is designed for the employer to state the workplace violence policy that is expected to be followed in the workplace, the degree and method of employee involvement in the process, the means for employees to report concerns and the individuals responsible to assure implementation. It was designed to establish management commitment and assign duties, which is the recognized first step in any successful safety and health program.

The proposed rule would require that employers develop a written prevention program which includes a method for tracking workplace violence incidents. The information required is specified, the employer may provide it in any format chosen or utilize current forms or electronic data. Collection of data on the types, frequency and severity of workplace violence incidents is necessary to understand the nature of the workplace violence problem in the particular workplace so that adequate measures can be taken to mitigate the hazards and the written program updated to reflect those changes. The written program must be a living document, updated when necessary to remain effective. The workplace violence incident report is a tool to assist in that endeavor.

The rule requires that employees must report violations in writing to a supervisor first and then to the Commissioner after a reasonable period has passed without remediation. The Legislature placed the reporting requirement to the supervisor and all public employee complaints to the Commissioner are required to be in writing. The burden of this additional step is minimal.

Duplication: The law specifically requires the development and implementation of a workplace violence prevention program. Triggers to recognize the presence of a harmful situation may include harassment, sexual or otherwise, and stalking. Both harassment and stalking are defined in the Penal Law and both carry the weight of individual legislation dedicated solely to the recognition and consideration of unique elements associated with both crimes. The workplace violence prevention program act does not duplicate the penal code; simply it states harassment and or stalking as triggers to identify a potential violent situation.

Alternatives: The Agency has incorporated procedures which are nationally recognized as effective in preventing or reducing the incidence of workplace violence.

The incident reporting system the employer is required to develop and implement does not have an alternative which will accomplish the desired ability to identify the types of incidents occurring in the workplace, trends that are developing and timely information required to intervene when possible before an injury or fatality occurs.

The Department had posted a draft of the regulation and received a number of comments. The original draft had reporting requirement which a number of employers objected to. The department modified the draft to eliminate those external reporting requirements.

The rule also included reference to the safety of patients which a number of commenters objected to. The Department was unable to remove that provision as it was provided for in the legislation.

Another concern that was reviewed was the requirement that employees must file a notice with the employer and allow a reasonable amount of time for the employer to correct the hazard before they may file a complaint with the Commissioner. Employee representatives were strongly opposed to this requirement. However, the provision was provided for in the legislation and could not be removed from the rule.

Federal Standards: There are no mandatory federal standards which cover workplace violence. There are a number of national consensus documents prepared by the NIOSH, OSHA, FBI and others which were used to develop the rule into an effective tool in preventing workplace violence.

Compliance Schedule: Compliance should take no more that 120 days and that time frame has been built into the Rule. A stepped abatement period is provided for which will allow employers to be in compliance in that time frame.

The Policy statement should be developed within 30 days, the workplace examination should be completed within 60 days, the written program should be completed within 75 days, and the employer should reasonably be able to meet all requirements in 120 days.

Different, shorter and longer compliance periods were examined and rejected. The present recommended compliance periods are a compromise between those who advocated for shorter or longer dates.

In situations of practical difficulties or unnecessary hardship, an employer may seek a variance from these requirements as per Labor Law § 30.

1. Effect of rule:

The Law as enacted does not apply to private sector businesses. The Law applies to State and local government employers except School Districts, BOCES, other cooperative vocational schools and the NYC schools are exempted. Compliance with this rule and regulation would duplicate the antiviolence planning required under Section 2801-a of the Education Law and the Legislature exempted those Public employers.

The Department believes that compliance with the proposed rule will bring about safer workplaces and reduce the number of assaults on employees. This reduction will translate into a reduction in compensation claims and the associated uninsured costs of replacing an injured employee.

2. Compliance requirements:

Compliance with this rule would first require the employer to develop and post a written policy statement stating the goals and objectives expected from the workplace violence program. This statement would establish employer commitment to the process. This commitment is provided for in all the national consensus information reviewed including NIOSH and the FBI. The employer is then expected to review injury and incident records and inspect the workplace and determine what risk factors employees are exposed to and design a prevention program and train employees.

The Department of Labor (DOL) expects the whole process to be conducted with the involvement of the employees or their authorized representatives. Labor Law, Article 2, Section 27-b became effective on March 4, 2007. The agency is required to promulgate the rule and regulation for enforcement by July 17, 2007. DOL feels that a stepped abatement policy would provide the greatest amount of flexibility for the employers. The policy statement should be complete in 30 days from the effective date, the risk assessment and workplace examination in 60 days, the written program in 75 days and full compliance in 120 days. DOL feels that 120 days from the adopted date of the rule would be adequate to make the rule fully effective. With good cause, the employer can also ask for a variance to extend the date.

The Labor Law in Section 27-a provides for a temporary variance when there are difficulties in timely compliance with a new requirement. There is no fee for the variance.

3. Professional services:

Most public employers have access to law enforcement officers and security personnel. Larger local agencies have full time safety and health officers or individuals who can implement a violence prevention program. The rule is written so that the smaller the entity, the less complicated the program need be. Employers with less than 20 employees are not required to have a written program. Some employers may elect to hire private consultants, attorneys or human resource professionals to develop their plan and train employees. Some employers may elect to share resources with other entities to develop their plans.

4. Compliance costs:

Compliance costs would be minimal and those would diminish as the employers get smaller in size. In most instances it will be hard to calculate cost for smaller local government employees. Many will be helped through the Department's Public Employee Safety and Health Bureau consultation programs. Smaller employers can expect to be given assistance in the risk assessment and provided with training assistance. Model programs will be made available. Most local agencies already have the resources to meet the requirements in a timely manner. Employers may elect to share resources with other entities in the development of their program.

5. Economic and technological feasibility:

Compliance is economically feasible using proven technology where necessary. Most employers will have no technology involved.

6. Minimizing adverse impact:

The rule was developed from the requirements set forth in Labor Law Section 27-b, with definitions added to clarify intent. Additional language was developed from national consensus standards or reports which provide the least work intensive means to implement an effective and compliant program. The Department intends to minimize the impact on smaller governments by providing outreach to these governments through our consultative service and through employer organizations such as the Association of Counties and others. Employers may elect to share services in and resources with other entities in developing their programs.

7. Small business and local government participation:

This Law will have no effect on small businesses. In all cases, the paperwork requirements for local government may be made using existing documents required by other laws or electronic storage methods.

The Department posted a copy of a proposed rule on the web site. Employers and employees were encouraged to comment. The posting was available on the web from March 5, 2007 to April 15, 2007. The responses were read and where appropriate incorporated into the document.

1. Types and estimated numbers of rural areas:

The New York State Department of Labor (DOL) is proposing to promulgate 12 NYCRR Part 800.16 which implements programs to minimize the hazard of workplace violence for public sector employees. The New York State Department of Labor is unaware of any adverse impact to rural areas as a result of the proposed regulation.

Local government entities consisting of county, city and village offices, school districts fire districts and other special districts exist in rural areas of the state as designated by Executive Law section 481(7).

2. Reporting, recordkeeping and other compliance requirements; and professional services:

Rural public sector employers must develop and maintain workplace violence incident reporting and recordkeeping. Annual review of the workplace violence incident reports to identify trends in the types of incidents in the workplace and review of the effectiveness of the mitigating actions taken is required. The employer is currently required to keep injury and illness records under the PESH act and would only need to expand on them slightly.

There is the possibility that employers would opt to hire a consultant firm to prepare the workplace violence prevention plan or retain the service of an attorney.

Local governments and other entities may elect to share resources in the development of the plan and training of employees.

3. Costs:

Compliance costs would be minimal and those would diminish as the employers get smaller in size. In most instances it will be hard to calculate cost for rural public employers. Many will be helped through DOL's Public Employee Safety and Health Bureau consultation programs. PESH will be available to provide model plans and to assist with training.

Costs for annual training and evaluation of the program are variable based on each employer plan. Employers with like workplaces and similar risks may elect to share resources in developing the plan and training employees.

4. Minimizing adverse impact:

The proposed rule will not adversely impact rural areas. Implementation would translate into a smaller amount of worker compensation benefits and leave, less overtime to cover shifts of injured employees and fewer disability benefits distributed.

The Public Employee Safety and Health Bureaus consultation serve will be available to assist in identifying risks and advising in the practices to mitigate those risks. Model programs and training will be made available.

5. Rural area participation:

A draft copy of the proposed rule was available during an informal public comment period. One rural county (Tioga) commented on the draft. That county had a program which was near compliant.

During the formal comment period the Department will provide copies of the proposed rule to public employer organizations such as the Association of Counties and the like for their comments.

This rule concerns the development and implementation of workplace violence prevention programs for public sector employers. It is apparent from the nature and purpose of the rule that it will not have a substantial adverse impact on jobs and employment.