The laws related to drug and alcohol testing of current employees is evolving. However, both federal and state courts have held that the reasonable expectation of privacy of an employee or potential employee can be diminished by the nature or duties of the position held. Drug-testing cases reveal three relatively narrow job-categories in which courts have justified the invasion of employee privacy rights. These categories are: the protection of public safety in law enforcement and drivers with commercial licenses,186 the monitoring of employees who hold sensitive positions of public trust, and the protection against the disclosure of highly sensitive information.
See also the discussion of testing job applicants for drugs and alcohol in Section III.E.3. See Appendix GG for a discussion of the factors to consider when instituting a drug testing policy and some considerations for a testing policy
The Drug Free Workplace Act187 requires all federal grantees and organizations188 that have contracts in the amount of $100,000 or more ("federal contractors") to provide a drug free workplace by, among other things:
Publishing a statement notifying employees that the unlawful manufacture, distribution, possession, or use of a controlled substance is prohibited in the workplace, and specifying the actions that will be taken against employees for violations;
Establishing a drug-free awareness program to inform employees about (1) the dangers of drug abuse in the workplace; (2) the organization's policy of maintaining a drug-free workplace; (3) any available drug counseling, rehabilitation or employee assistance programs; and (4) the penalties that may be imposed upon employees for drug abuse violations.
Notifying all employees in a written statement that, as a condition of employment, employees must:
abide by the terms of the program; and
notify the organization of any criminal drug statute conviction for a violation occurring within the workplace no later than 5 days after the conviction. The organization will report the violation to the government contracting agency within 10 days of receiving notice of the conviction; and
Imposing corrective measures on any employee convicted of drug abuse violations in the workplace within 30 days after receiving notice of his/her conviction, and:
require the employee to satisfactorily participate in a drug abuse assistance or rehabilitation program approved vy federal, state or locall health, law enforcement or other appropriate agency; or
take action against the employee, up to and including termination.
If a federal contractor is found not to have a drug-free workplace, each contract awarded by any federal agency shall be subject to suspension of payments or termination of the contract or both. The contractor may also be ineligible for award of any contract by any federal agency, and for participation in any future procurement by any federal agency, for a period not to exceed 5 years.
2. Federal Department of Transportation (DOT) Rules for Drug and Alcohol Testing
The Omnibus Transportation Employee Testing Act of 1991 (OTETA) requires drug and alcohol testing of safety sensitive employees in all forms of interstate transportation. The Federal Motor Carrier Safety Administration's (FMCSA) has also issued alcohol and drug testing rules for persons required to obtain a commercial driver's license.
Examples of drivers and employers that are subject to these rules include, but are not limited to:
Due to the complexity of the DOT regulations, a complete summary is beyond the scope of this Guide. The regulations and an overview of the drug and alcohol testing rules are available at http://www.dot.gov/ost/dapc/NEW_DOCS/part40.html?proc and http://www.fmcsa.dot.gov/rules-regulations/topics/drug/engtesting.htm.
New York does not have a specific statute regulating drug testing of applicants, as discussed in Section III.E.3, or testing of current employees. However, many other states have specific statutes regulating drug testing which require reasonable suspicion or other justification before an employer can conduct a drug test. These statutes also contain procedural provisions with respect to the collection of samples and testing conditions. These statutes, as well as the limited case law available in New York, can provide guidance to New York employers who want to implement steps to minimize claims and legal liability. For example, New York courts have held that an individual may request a retest of a positive result at an independent laboratory of his/her choosing,189 and that when a result is challenged, an employer must be able to provide evidence that a test accurately distinguishes between drug users and consumers of lawful foodstuffs or medications. Further, New York courts have held that rejecting an applicant due solely to positive test results may be unlawful and discriminatory and employers should be prepared to rebut this alleged discrimination by demonstrating that the applicant's disability (i.e., substance abuse) prevents him/her from performing the duties of the sought after position in a reasonable manner.190 Employers should:
have a written policy in place which has been distributed to all employees and posted and have employees sign an acknowledgement form;
provide employees with at least 60 days notice before implementing a testing policy and before any testing is conducted;
use only certified labs and require dual confirmation;
promptly provide employees with test results and keep drug and alcohol test results confidential and in a separate file;
provide a mechanism for employees to rebut positive results and to request a retest;
document all instances of "reasonable suspicion;" and
provide employee with resource/referral information for employee assistance programs.
An employer may drug test an employee "for cause" when an employer has reasonable suspicion that an employee is under the influence of drugs or alcohol and its effect could adversely affect the employee's job performance. Random drug testing is only permitted for employees working in "high risk" or "safety sensitive" positions, as designated by the Commissioner of Labor, or employees participating in an employee assistance program.191
An employee or contractor who drives a motor vehicle (90 days or more in a 365-day period) that weighs in excess of 10,000 pounds, mechanics who repair those vehicles or other commercial motor vehicles, and forklift operators are required to submit to testing in accordance with federal DOT regulations.192
On-site testing is permitted as long as reliable methodology is used and all initial positive tests are confirmed. All positive initial tests must be confirmed by a methodology determined by the Commissioner of Health Services to be reliable.193 Direct observation of a collection is prohibited.194
All drug test results must be maintained, along with the employee's medical records, separate from other personnel files.195 No information relating to drug test results may be disclosed without the employee's authorization (unless required by federal or state law, the terms of a collective bargaining agreement, or a court of law).196 An employee has the right to inspect and obtain a copy of his or her drug test results.197 Employees must be given the opportunity to submit a written statement explaining the test result if the employee disagrees with any information in the file.198
The Occupational Safety and Health Act of 1970 (OSHA),199 enacted to "assure safe and healthful working conditions for working men and women," has established safety and health standards for places of employment. There are two distinct duties related to an employer's obligation to provide their employees with a safe and hazard free workplace. The Act requires each employer to comply with all occupational safety and health standards promulgated under it. Where a specific standard has not been promulgated, the Act requires that each employer furnish to each employee "a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm" to employees.
The Act covers employment in every state, but does not apply to the working conditions of employees over whom other state and federal agencies exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health. 200
Safety programs, if properly developed and implemented, can be effective tools for reducing workplace injuries. As a result, expenses due to employee injuries, time off from work, and workers' compensation costs can be lowered. OSHA recommends that employers institute a safety and health program that provides for systematic identification, evaluation, and prevention of workplace hazards. Employers should keep records of inspections of the workplace, any hazards found, and what corrective action was taken. A review at least annually is recommended.200a
A model employment manual section for employee safety is contained in Appendix Q. Depending upon the nature of your organization's operations, a more comprehensive written occupational safety and health program may be appropriate.
Employers may be cited for failing to prevent foreseeable employee misconduct. An employee fails to follow safety procedures, or improperly uses equipment, even if deliberate, may place the employer in violation of the Act. An employer must show that it has established safe work rules, communicated them to the employees, taken steps to discover violations, and effectively enforced the rules when violations were discovered. Adequate communication, training and supervision to prevent misconduct are necessary.
Be sure you have all required OSHA posters on display in your facilities. All employers, regardless of size, must display the OSHA poster.202 OSHA Posters can be obtained on OSHA's website or by contacting the OSHA Office nearest you.203
As an OSHA covered employer, you are also required to report any employment accident that results in one or more fatalities or the hospitalization of three or more employees to the nearest OSHA office within 8 hours after its occurrence. In addition, if you had more than eleven (11) employees at any one time in the previous calendar year and are in certain specified industries, including lodging places, health services, and recreation services (but not including service industries, such as educational and social services, and museums) you may be required to complete OSHA Forms 300 and 300A, which log and summarize work-related injuries and illnesses at your workplace. The form 300A should be signed by an officer to certify the data, and posted at your worksite for three months. In addition, Form 301 is used to describe the injury or illness, how it occurred, and the objects or substances involved.201 OSHA also requires employers to establish a procedure for reporting injuries and to tell employees how to report. Specific reporting requirements apply to incidents of needlesticks and tuberculosis. OSHA has published a Recordkeeping Handbook, which provides detailed information on recordkeeping requirements.201a
OSHA is enforced through the physical inspection of work sites, with citations or warnings issued for violations as appropriate. OSHA also seeks to foster voluntary cooperation of employers and employees.
In 2003, OSHA implemented an Enhanced Enforcement Program to target employers with persistent and serious workplace safety violations. When serious violations are found at one company location, OSHA will inspect other company locations to identify a pattern of violations.201b In addition to expanded inspections, the Enhanced Enforcement Program strengthens requirements for settlement agreements by, for example, mandating that egregious violators hire consultants to change their company's health and safety culture. OSHA will file settlements with the federal court and will seek contempt of court sanctions against companies that do not comply with their settlement obligations.
In May 1997, the Department of Labor published a letter stating that OSHA applies to welfare recipients in the same way that it applies to other workers. However, the Department noted that the question of who is the workfare recipient's "employer" is important. OSHA does not apply to public sector employees, and in cases where the workfare recipient is assigned as part of a public-private partnership, the determination of who is the employer will be made on a case by case basis. Compliance requirements are generally placed on the party most directly controlling the physical conditions at a worksite. In most cases, the non-profit has the most direct control over the working conditions of the worksite and is responsible for supervising the work, and therefore, the safety of the employees.201c
There are OSHA standards, regulations, and guidelines applicable to particular hazards. Among those that may be applicable to not-for-profit organizations include the following:
(1) Workplace Violence
Under the "General Duty Clause" of the Occupational Safety and Health Act, an employer has a duty to provide its employees with a workplace free of recognized hazards likely to cause death or serious physical harm. Employers can be cited for violating the General Duty Clause if there is a recognized hazard of workplace violence in their establishments and they do nothing to prevent or abate it.
OSHA has specifically recognized that health care and social service workers face a significant and increasing risk of job-related violence. OSHA has published Guidelines for Preventing Workplace Violence for Health Care and Social Service Workers, OSHA 3148, 1998. These guidelines do not establish a new standard or regulation, but employers who effectively implement them will not be cited for violating the General Duty Clause. Also helpful is OSHA's Workplace Violence Fact Sheet (2002).204
(2) Ergonomic Hazards
Ergonomic tasks include lifting, holding, pushing, walking and reaching. Ergonomic hazards or risk factors include excessive repetition, force, awkward postures, contact stress, and vibration. Resulting ailments, referred to as musculoskeletal disorders ("MSDs"), such as low back pain, tension neck syndrome, carpal tunnel syndrome, rotator cuff syndrome, sciatica, and herniated spinal discs, are avoided primarily by effective design of the workplace and better designed tools and equipment.205
The nearly universal presence of video display terminals (VDT) in the workplace has brought complaints such as fatigue, eye strain and irritation, blurred vision, headaches, stress, and neck, back, arm and muscle pain. There is also concern, not yet scientifically founded, over the level of exposure to radiation, such as X-ray and electromagnetic fields. OSHA has issued voluntary guidelines that employers can implement to prevent or reduce the potential harmful effects of working with VDTs. See Fact Sheet No. OSHA 95-24.206 Appendix R contains Computer Workstation Evaluation and Purchasing Guide Checklists taken from this OSHA application.
(3) Blood Borne Pathogens
Any organization which provides healthcare or child care in which blood borne pathogens may be an issue should be familiar with OSHA standards applicable to bloodborne pathogens.207 In 1991, OSHA issued the Bloodborne Pathogens Standard (29 C.F.R. 1910.1030) to protect workers from this risk. In 2001, in response to the Needlestick Safety and Prevention Act, OSHA revised the Bloodborne Pathogens Standard. The revised standard clarifies the need for employers to select safer needle devices and to involve employees in identifying and choosing these devices. The updated standard also requires employers to maintain a log of injuries from contaminated sharps.208
(4) Hazard Communications of Toxic Substances
OSHA standards on Hazard Communications are intended to assure that the hazards of all chemicals are evaluated, and that information concerning their hazards is communicated to employees. These standards may apply whenever employees are exposed to hazardous materials, such as health care workers and those maintaining swimming pools. OSHA requires that a written, comprehensive hazard communication program be established, including container labeling and other forms of warning, material safety data sheets, and employee training. Employers must inform their employees of the availability of the program, including the required list of hazardous chemicals, and material safety data sheets. Appendix S contains a sample Hazard Communication Program prepared by an OSHA Compliance Officer.208a
The New York Right-to-Know Law209 requires employers to provide information to current and former employees of exposure to toxic substances. Employers must notify their employees whenever the employer "receives new information" concerning certain toxic substances and chemicals, their hazards, effects, symptoms, conditions for safe use and exposure, and emergency cleanup.
Employers are also required to make information available and respond in writing within seventy-two hours (excluding weekends and holidays) of receiving an employee's information requests.
Employers must educate and train employees who are routinely exposed to toxic substances before the initial assignment to work with the substances, and at least annually afterward. The employer must maintain detailed records on every employee who handles or uses hazardous substances, and upon request, records must be made available for examination and copying to affected current and former employees. These records must be retained for forty years and be turned over to the Department of Health if an employer ceases to operate within New York State.
New York City has adopted Local Law No. 26,210 which requires companies with "facilities" that meet certain threshold limits for use, storage, handling or disposal of hazardous substances, to file annually Facility Inventory Forms (FIFs). "Facilities" are buildings, equipment, structures and other stationary items located on a single site or on contiguous adjacent sites involved in the processing, storage, handling, treatment, placement, disposal or use of hazardous substances. The goal of the law is to provide citizens and emergency response personnel with information on the type and location of hazardous substances in the event of a fire, spill, or accidental release.
The Department of Environmental Protection ("DEP") has the authority to inspect facilities for compliance during normal business hours and upon prior notice. In addition, private citizens may file a written complaint alleging violations of the law that must be investigated by the DEP within twenty days. Violators may be held liable for civil penalties in the form of fines.
An employee may not be penalized in any way for (1) refusing to be exposed to a "hazardous condition" or (2) for informing another employee that is being exposed to a hazardous condition.211 "Hazardous condition" is defined as "a condition which (A) causes or creates a substantial risk of death, disease or serious physical harm, whether imminent or as a result of long-term exposure, and which is beyond the ordinary expected risks inherent in a job after all feasible safety and health precautions have been taken, and (B) results from the employer's violation of applicable safety and health standards established under any federal, state and local laws and regulations, any collective bargaining agreements and any industry codes."212
Under Connecticut law, employers are required to report every accident that results in serious physical injury (death or absence from work for more than one week) while an employee is at work. Notice must be sent to the Commissioner of the Connecticut Department of Labor within 15 days after such accident.213
In Connecticut, inspectors can enter any place of employment for inspection or investigation.214 Any information regarding an employer's trade secrets learned during an inspection is considered confidential and may only be disclosed to other members of OSHA for determining compliance.215 Where violations are discovered, Connecticut statutes carry specific penalties, either fine or imprisonment, depending on the provision that was violated. The employer has fifteen days from receipt of a citation and penalty to notify the Commissioner of its intention to contest the assessment, and be afforded a hearing before the Commission.216
Under the “General Duty Clause” of the Occupational Safety and Health Act, an employer has a duty to provide its employees with a workplace free of recognized hazards likely to cause death or serious physical harm. Employers can be cited for violating the General Duty Clause if there is a recognized hazard of workplace violence in their establishments and they do nothing to prevent or abate it.217
OSHA has specifically recognized that health care and social service workers face a significant and increasing risk of job-related violence. OSHA has published Guidelines for Preventing Workplace Violence for Health Care and Social Service Workers.218 These guidelines do not establish a new standard or regulation, but employers who effectively implement them reduce the likelihood of being cited for violating the General Duty Clause. Although these guidelines are specifically crafted for the Health Care and Social Services Industries, they can be adapted to the needs and resources of other individual places of employment.219 Also helpful is the Workplace Violence OSHA Fact Sheet.220
An increasingly problematic form of workplace violence involves domestic violence. When domestic violence spills over into the workplace it compromises the safety of victims, co-workers, and non-employees. It can also lead to low morale, reduced productivity, increased health care costs, absenteeism, and employee turnover, as well as liability for the employer. While employers are currently under no obligation to implement programs to prevent workplace violence, doing so can minimize the costs associated with workplace violence as well as an employer’s potential liability.
Effective March 4, 2007, the Workplace Violence Prevention Act requires New York public employers take affirmative steps to prevent workplace violence. Under this law, most public employers are required to evaluate the safety of their workplaces, develop and implement workplace safety programs, and provide employees with workplace safety training. The specific requirements of this law can be found at New York Labor Law Section 27-b.221
With respect to private companies the New York State Office for the Prevention of Domestic Violence offers an excellent model domestic violence policy for private businesses that is designed to help businesses promote domestic violence awareness and to provide a safe and supportive environment for employees.222
New York state law also requires employers, with prior day notification, to allow time off for victims or witnesses to pursue legal action related to domestic violence. Under New York Penal Law § 215.14 it is a crime for an employer to penalize an employee who, as a victim or witness of a criminal offense, is required, or chooses, to appear as a witness, consult with the District Attorney, or to exercise his or her rights as provided in the Criminal Procedure Law, the Family Court Act, and the Executive Law
3. Connecticut Law
On August 4, 1999, the state adopted a zero tolerance policy for workplace violence. All state employees, contractors, subcontractors, and vendors are responsible for complying with this policy and maintaining a reasonably safe and healthy working environment. The state has since issued a Violence in the Workplace Policy and Procedures Manual. The stated goal of the policy and manual is to "reduce the probability that employees will engage in verbal threats or physical actions that create a security hazard for others in the workplace" and "ensure that any complaint of violence or the threat of violence is taken seriously and is thoroughly and promptly investigated." The manual is available online on the state's website.222a
While we do not expect that the workplace will be the target of outside threats or acts of terrorism, in today’s age, it is important to be aware of potential risks and to take simple precautions relating to mail security to ensure everyone’s safety.
Be on the lookout for strange or suspicious looking envelopes or packages. While it is not possible to characterize all packages that should be viewed with caution, things to look for include envelopes or packages: (1) with strange or no return address; (2) with misspelled words; (3) with excessive postage; (4) that are addressed to a person’s title only (i.e., the “Chief Executive Officer”); (5) that have oily stains on them; (6) that emit strange odors; (7) that are lopsided, bulging, uneven or excessively heavy; (8) that are packaged with excessive amounts of tape or string; or (9) that emit a “ticking” sound or that have protruding wires or metal. In the end, you should use your best judgment in determining whether an envelope or package qualifies as a potential threat, but you should always err on the side of caution in making this judgment.
If you encounter a suspicious envelope or package, DO NOT OPEN IT. Handle it with care, making sure not to shake or bump it. Do not carry the package or envelope, smell or taste it, show it to others or allow others to examine it. Instead, immediately isolate the envelope or package, and alert others in the area about its presence. If possible, turn off any fans or ventilation units in the area. Evacuate the area and immediately contact local law enforcement authorities. Treat all suspect envelopes and packages with caution until you have confirmed that they present no threat of danger. If you have come into contact with a suspicious envelope or package, promptly wash your hands with soap and water. If you develop any suspicious symptoms, you should immediately see a doctor.
As a precaution, you should likewise exercise safe practices when handling even non-suspicious envelopes or packages. For example, open all non-suspicious mail in a manner that minimizes skin contact and is least likely to disturb the contents, such as by using a letter opener. Do not blow into envelopes, and keep your hands away from your nose and mouth while opening mail. Additionally, we recommend that you always wash your hands after handling mail.222b
In March 2003, the legislature amended New York’s Clean Indoor Air Act to outlaw smoking in all virtually all indoor workplaces.223 Specifically, the law prohibits smoking in all indoor places of employment, bars, restaurants, schools (including public and private colleges), child care centers, indoor arenas, on public transportation, and in general hospitals and zoos. Employees with private offices cannot smoke in their office, or anywhere in their work building. Nor is smoking permitted in company cars. Also, the law requires that employers post “no smoking” signs in the workplace, alerting employees to this policy.
Smoking remains permitted in private homes (when not used for child daycare), hotel or motel rooms, retail tobacco businesses (defined as stores where the primary activity is the retail sale of tobacco and accessories—i.e., excludes convenience stores), and in “cigar bars” registered as of January 1, 2003. Moreover, the law does not regulate smoking in outdoor smoking areas. Employers remain free to regulate employee outdoor smoking during working hours as they see fit (such as by prohibiting smoking within a certain distance of the building.)
The amendment represented a departure from New York’s prior no-smoking law, which generally permitted employers and business owners to designate permissible smoking areas for their employees and patrons. Such designation is no longer permitted, although restaurants may still designate up to 25% of seating in outdoor areas of restaurants with no roof or ceiling enclosure as smoking areas.
Violators of this law face civil penalties of up to $2000 per violation. Employers may apply to the state health department for a “waiver” from its prohibitions, if it can show that either “compliance with a specific provision of [the law] would cause undue financial hardship” or “other factors exist which would render compliance unreasonable.” Eligibility for waivers is difficult to prove, however, and employers seeking a waiver should be prepared to submit detailed documentation supporting their application.
In New York, an employer cannot require, as a condition of employment, that an employee or prospective employee refrain from using tobacco products on their own time outside the course of employment.224
For employers in New York City, the Smoke-Free Air Act, also prohibits smoking in virtually every indoor environment except for private residences, private automobiles, hotel and motel rooms and retail tobacco stores.225 The law also permits smoking in qualifying “cigar bars,” but only those open since January 1, 2002, and at certain non-profit membership associations with no employees. Like the comprehensive state law, the Smoke-Free Air Act specifically outlaws smoking in all “places of employment,” including all office buildings, private offices, factories and warehouses, banks, shopping malls, retail stores, sports arenas, pool halls, bingo parlors, bowling lanes, public transportation facilities, educational and health care facilities, and child day care centers Specifically, smoking is prohibited in all company vehicles occupied by more than one passenger, and is precluded in all vehicles owned by New York City. Unlike the corresponding state law, employers cannot apply for a waiver from the requirements of the Smoke-Free Air Act.
One of the law’s requirements is that employers adopt, post and disseminate a written workplace smoking policy, (see section E.4., below) and to post “no smoking” signs at workplace entrances, on bulletin boards, and in bathrooms and stairwells. The policy must include an adequate redress procedure to protect from retaliation all employees who exercise, or attempt to exercise, rights granted under the policy. The policy must be prominently posted in the workplace, and disseminated to all employees within three weeks of its adoption and to new employee upon hire. Written copies must also be supplied upon request to employees, prospective employees and various New York City agencies.
Initial violations of the Smoke-Free Air Act law are punishable by civil penalties between $200 and $400 per violation. Subsequent violations may incur increased penalties up to $2000.
Connecticut also has laws prohibiting smoking, designed to protect the public and employees from the health risks associated with secondhand smoke. In Connecticut, an employer with five or more employees must prohibit smoking in all business facilities under the employer’s control, except that designated “smoking rooms” may be established. Such smoking rooms, however, must be located in non-work areas, where employee are not required to enter to perform their work, and must specifically exhaust all air to the outside and comply with applicable state and federal ventilation standards. Also, employers designating smoking rooms must likewise designate sufficient nonsmoking break rooms for their employees. Employers with less than five employees are required to establish one or more nonsmoking work areas within a business facility, upon request, to accommodate nonsmokers. In areas in the business facility where smoking is permitted, the employer must use its existing physical barriers and ventilation systems, to the extent practicable, to minimize the effect of smoking on adjacent nonsmoking areas. Under the applicable Connecticut laws, employers remain free designate an entire business facility as a nonsmoking area.226
Additionally, a Connecticut employer cannot require, as a condition of employment, that an employee or prospective employee refrain from using tobacco products outside the course of employment.227
A Sample Smoking Policy that complies with both New York's Clean Indoor Air Act and New York City's Smoke-Free Air Act has been provided in Appendix T. New York’s requirements exceed those of Connecticut, and therefore this sample policy can be adopted in Connecticut. Employers should consult an attorney, however, to ensure they adopt a policy which comports with both applicable law and the employer’s specific business operations.
186 Random testing of commercial drivers is required by 29 U.S.C. § 651 et seq. and U.S. Department of Transportation Regulations, 49 CFR 382.305. See rules and explanation at http://www.fmcsa.dot.gov/rules-regulations/topics/drug/engtesting.htm. These regulations include procedures to assure the integrity of the testing process.
188 Individuals who have federal contracts or grants in any amount must agree not to engage in the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance in the performance of the contract or grant. The additional requirements listed above are applicable only to organizations.
189 Franklin v. Office of Court Administration, 2 IER Cases (BNA) 783 (Sup. Ct. N.Y. Co. 1987).
190 Doe v. Roe, Inc., 143 Misc. 2d 156, 539 N.Y.S.2d 876 (Sup. Ct. N.Y. Co. 1989), aff'd, 160 A.D.2d 255, 553 N.Y.S.2d 36 (1st Dept. 1990). See also, City of New York v Donnaruma, 70 A.D.2d 856, 418 N.Y.S.2d 45 (1st Dept. 1979); Board of Educ. v New York State Div. of Human Rights, 42 A.D.2d 49, 52 (2nd Dept. 1973), affd 35 N.Y.2d 673, 319 N.E.2d 202 (1973).
191 Conn. Gen. Stat. § 31-51x(b).
192 Conn. Gen. Stat. § 14-261b.
193 Conn. Gen. Stat. § 31-51u(a).
194 Conn. Gen. Stat. § 31-51w.
195 Conn. Gen. Stat. § 31-51w(b).
196 Conn. Gen. Stat. § 31-128f.
197 Conn. Gen. Stat. § 31-128c; 31-128g.
198 Conn. Gen. Stat. § 31-128e.
200 Nonprofit organizations in Connecticut and New York generally must comply with OSHA. Section 18 of the Occupational Safety and Health Act, 29 U.S.C. § 667, expresses Congress' intent to preempt state laws with respect to which the federal Occupational Safety and Health Administration has promulgated occupational safety or health standards. Under the Act, a state can avoid preemption only if it submits, and obtains Federal approval of, a plan for the development of such standards and their enforcement. Occupational safety and health standards developed by states must, among other things, be at least as effective as the federal standards in providing safe and healthful employment and places of employment. The twenty-five states with their own OSHA-approved occupational safety and health plans include Connecticut and New York, both for state and local government employees only. The New York State Industrial Code contains regulations for the safety and health of places of employment not covered by OSHA standards. For the most part, these regulations are not applicable to the kind of work typical of non-profit organizations and, therefore, OSHA will normally apply.
200a See Q & As for Small Business Employers, available at http://www.osha.gov/Publications/osha3163.pdf
201 This requirement may be satisfied by using worker's compensation forms, such as New York State Worker's Compensation Form C2, insurance or other reports which contain all the same information as OSHA Form 101, or if the missing information is included as a separate attachment. Similarly, Connecticut allows the information to be maintained in alternative documentation as long as it replicates the data required by Form 101. See Conn. Agencies Regs. § 31-374-5.
201a See OSHA Recordkeeping Handbook, OSHA 3245-01R 2005, available at http://www.osha.gov/recordkeeping/index.html. Recordkeeping forms can be accessed at http://www.osha.gov/recordkeeping/new-osha300form1-1-04.pdf. See also http://www.ctdol.state.ct.us/osha/shstats.htm (Connecticut forms); http://www.labor.state.ny.us/workerprotection/safetyhealth/DOSH_PESH.shtm (New York forms)
201b See 9/30/2003 - Interim Implementation of OSHA's Enhanced Enforcement Program (EEP), available at http://osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24649
201c See Department of Labor, "How Workplace Laws Apply to Welfare Recipients," May 1997 (Rev. 2/99).
202 29 CFR §1903.2. OSHA posters are available online at http://www.osha.gov/pls/publications/publication.athruz?pType=Types&pID=5. See also http://www.ctdol.state.ct.us/osha/publicat.htm (Connecticut posters); http://www.labor.state.ny.us/workerprotection/safetyhealth/DOSH_POSTERS.shtm (New York posters).
203 Call the Occupational Safety and Health Administration offices in Washington, DC at (202) 693-2000, or on the Internet at http://www.osha.gov/. Particularly helpful is the Handbook for Small Business, OSHA 2209, http://www.osha-slc.gov/SmallBusiness/OSHAPub.html, and OSHA's Self-Inspection Checklists, http://www.osha-slc.gov/SLTC/smallbusiness/chklist.html.
204 See Guidelines for Preventing Workplace Violence for Health Care & Social Service Workers, available at http://www.osha.gov/Publications/OSHA3148/osha3148.html; Workplace Violence Fact Sheet (2002), available at http://www.osha.gov/OshDoc/data_General_Facts/factsheet-workplace-violence.pdf
205 On November 14, 2000, the Occupational Safety and Health Administration issued a highly controversial final rule for an Ergonomics Program Standard. The standards were to be applicable to all employers with ten or more employees and enforced beginning in October 2001. All employees were to be supplied with basic MSD information, including how to report MSDs. A prompt investigation was required. If the job involved any of the activities specified in a Basic Screening Tool, the employer would then be required to implement a complex, costly complete ergonomics program. Congress rescinded these standards, but the Secretary of Labor has stated that she will study a comprehensive approach to ergonomics. The ergonomics issue has not been removed from the workplace, and employers may be subject to fines for such hazards under OSHA's "general duty" clause. In addition, employers should establish programs to avoid ergonomics hazards if only to reduce disability claims and absences due to illness. For more information, go to http://www.osha.gov/SLTC/ergonomics/faqs.html#differ.
206 See Fact Sheet No. OSHA 95-24: Safety With Video Display Terminals (1/1/95), available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=170&p_table=FACT_SHEETS
207 See Bloodborne Pathogens and Needlestick Prevention: OSHA Standards, available at http://www.osha.gov/SLTC/bloodbornepathogens/standards.html.
208 For more information, go to http://www.osha.gov/SLTC/bloodbornepathogens/index.html
208a For more information, go to http://www.osha.gov/SLTC/hazardcommunications/index2.html.
209 N.Y. Lab. Law § 875 et seq.; N.Y. Pub. Health Law § 4800 et seq.
210 N.Y.C. Admin. Code § 24-701 et seq.
211 Conn. Gen. Stat. § 31-40t(b). See also the discussion of retaliation and whistle-blowing in Chapter XIV.
212 Conn. Gen. Stat. § 31-40t(a)(4).
214 Conn. Gen. Stat. § 31-374(a).
215 Conn. Gen. Stat. § 31-381.
216 Conn. Gen. Stat. § 31-377.
217 New York state law imposes a similar general duty to protect the “health and safety” of all persons employed. See N.Y. Lab. Code § 200.
218 See Guidelines for Preventing Workplace Violence for Health Care and Social Service Workers, OSHA 3148-01R 2004, available at http://www.osha.gov/Publications/OSHA3148/osha3148.html.
219 See OSHA Standard Interpretations (June 7, 2004), available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24894 (OSHA's guidelines are advisory, do not create new employer obligations, and are not basis for citations)
220 See Workplace Violence OSHA Fact Sheet (2002), available at http://www.osha.gov/OshDoc/data_General_Facts/factsheet-workplace-violence.pdf.
221 See Workplace Violence Prevention Requirements For New York State Public Employers, available at http://www.labor.state.ny.us/workerprotection/safetyhealth/PDFs/Workplace%20Violence%20FlyerNov3.pdf.
222
See
Model Domestic Violence and the Workplace Policy for
222a See Violence in the Workplace Policy and Procedures Manual for Human Resource Professionals (June 2007), available at http://www.ct.gov/opm/cwp/view.asp?a=2992&q=383254
222b See Safe Mail Handling Procedures, available at http://www.compliance.gov/emergency/safemailhandling.html.
223 N.Y. Pub. Health Law § 1399-n–§ 1399-x. See also A Guide to the New York State Clean Indoor Air Act, available at http://www.health.state.ny.us/nysdoh/clean_indoor_air_act/general.htm.
224 N.Y. Lab Law § 201-d (unlawful for employer to refuse to hire, refuse to license, discharge from employment; or discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because the employee engaged in legal activities during non-working hours, including the legal use of consumable products).
225 N.Y.C. Admin. Code § 17-501 et seq. See also Smoke-Free Air Act Information, available at http://www.nyc.gov/html/doh/html/smoke/tc1.shtml#4.
226 Conn. Gen. Stat. § 31-40q. See also Clean Indoor Air Act Information, available at http://www.ct.gov/dph/cwp/view.asp?a=3137&q=388054&dphNav=|.
227 Conn. Gen. Stat. § 31-40s.