Bill Text: NY S04537 | 2019-2020 | General Assembly | Introduced


Bill Title: Enacts the "protection in the workplace act"; provides that injuries to employees as a result of the commission of a sexual offense shall entitle such employee to all rights and benefits available pursuant to the workers' compensation law and, in addition, shall permit such employee to pursue any other remedies available at law or in equity; clarifies that workers' compensation should be exclusive remedy except when the employee suffers personal injury as a result of a sexual offense committed by a co-worker.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2019-03-14 - REFERRED TO LABOR [S04537 Detail]

Download: New_York-2019-S04537-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          4537
                               2019-2020 Regular Sessions
                    IN SENATE
                                     March 14, 2019
                                       ___________
        Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
          printed to be committed to the Committee on Labor
        AN ACT to amend the workers' compensation law, in relation  to  enacting
          the "protection in the workplace act"
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Short title. This act shall be known and may  be  cited  as
     2  the "protection in the workplace act".
     3    §  2.  Legislative  intent. It is the finding of this legislature that
     4  violence in the workplace has become  an  increasingly  serious  occupa-
     5  tional hazard, which all too many employees and employers must confront.
     6  While  it  is  the intent of the workers' compensation system to provide
     7  medical aid and monetary compensation to injured workers or their survi-
     8  vors in return for the surrender of their right to petition the  courts,
     9  it  is  the  finding of this body that rape, sexual assault or other sex
    10  crimes should not be classified as a  condition  of  employment  at  the
    11  expense  of  the  workers'  compensation system's ameliorative goals and
    12  that such system is not and should not be used as  a  shield  to  permit
    13  employers  whose  negligent  acts  or  omissions cause injury or harm to
    14  fellow employees without such injured employees having every opportunity
    15  for full and adequate redress.   For purposes  of  determining  benefits
    16  pursuant  to  the  workers' compensation law, sexual assault is not, and
    17  shall not be considered a condition of employment.
    18    It is therefore the intent of this legislation to ensure that  workers
    19  suffering  sexual assault in the workplace due to the derelict or negli-
    20  gent practices of their employer, receive appropriate medical  care  and
    21  benefits  but also have every opportunity to recover all damages commen-
    22  surate with their injury.
    23    § 3. The workers' compensation law is amended by adding a new  section
    24  10-a to read as follows:
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10616-01-9

        S. 4537                             2
     1    § 10-a. Liability resulting from sexual offenses.  Notwithstanding any
     2  other provision of law, any employee suffering injury or personal injury
     3  pursuant to subdivision seven of section two of this chapter as a conse-
     4  quence  of  a sexual offense as defined in article one hundred thirty of
     5  the  penal  law due to negligent acts or omissions of the employer shall
     6  be entitled to all rights and benefits available pursuant to this  chap-
     7  ter  and,  in  addition  may pursue any remedy available in equity or at
     8  law, for compensation for any and all damages resulting from such  inju-
     9  ry.
    10    §  4. Section 11 of the workers' compensation law, as amended by chap-
    11  ter 635 of the laws of 1996, the opening paragraph as amended by section
    12  8 of part SS of chapter 59 of the laws of 2017, the  fifth  undesignated
    13  paragraph  as  added  by  chapter 49 of the laws of 1999 and the closing
    14  paragraph as added by chapter 392 of the laws of  2008,  is  amended  to
    15  read as follows:
    16    §  11.  Alternative remedy. 1. The liability of an employer prescribed
    17  by [the last preceding] section ten of this article shall  be  exclusive
    18  and in place of any other liability whatsoever, to such employee, his or
    19  her personal representatives, spouse, parents, dependents, distributees,
    20  or  any  person  otherwise  entitled to recover damages, contribution or
    21  indemnity, at common law or otherwise, on  account  of  such  injury  or
    22  death  or  liability arising therefrom, except that if an employer fails
    23  to secure the payment of compensation for his or her  injured  employees
    24  and  their  dependents  as provided in section fifty of this chapter, an
    25  injured employee, or his or her legal representative in case [of]  death
    26  results  from  the  injury,  may,  at  his or her option, elect to claim
    27  compensation under this chapter, or to maintain an action in the  courts
    28  for  damages  on  account of such injury; and in such an action it shall
    29  not be necessary to plead or prove freedom from contributory  negligence
    30  nor  may  the defendant plead as a defense that the injury was caused by
    31  the negligence of a fellow servant nor that  the  employee  assumed  the
    32  risk  of  his  or  her  employment,  nor  that the injury was due to the
    33  contributory negligence of the employee. The liability under this  chap-
    34  ter  of The New York Jockey Injury Compensation Fund, Inc. created under
    35  section two hundred twenty-one of the racing, pari-mutuel  wagering  and
    36  breeding  law shall be limited to the provision of workers' compensation
    37  coverage to jockeys, apprentice jockeys, exercise persons,  and  at  the
    38  election of the New York Jockey Injury Compensation Fund, Inc., with the
    39  approval  of the New York state gaming commission, employees of licensed
    40  trainers or owners licensed under article two or  four  of  the  racing,
    41  pari-mutuel  wagering  and  breeding  law  and  any  statutory penalties
    42  resulting from the failure to provide such coverage.
    43    2. For purposes of this section the terms  "indemnity"  and  "contrib-
    44  ution"  shall not include a claim or cause of action for contribution or
    45  indemnification based upon a provision in  a  written  contract  entered
    46  into  prior  to  the  accident  or  occurrence by which the employer had
    47  expressly agreed to contribution to or indemnification of  the  claimant
    48  or person asserting the cause of action for the type of loss suffered.
    49    3.  An  employer  shall not be liable for contribution or indemnity to
    50  any third person based upon  liability  for  injuries  sustained  by  an
    51  employee  acting  within  the  scope  of  his or her employment for such
    52  employer unless such  third  person  proves  through  competent  medical
    53  evidence  that  such employee has sustained a "grave injury" which shall
    54  mean only one or more of the following: death, permanent and total  loss
    55  of  use  or  amputation  of  an arm, leg, hand or foot, loss of multiple
    56  fingers, loss of multiple toes, paraplegia or  quadriplegia,  total  and

        S. 4537                             3
     1  permanent blindness, total and permanent deafness, loss of nose, loss of
     2  ear,  permanent and severe facial disfigurement, loss of an index finger
     3  or an acquired injury to the brain caused by an external physical  force
     4  resulting in permanent total disability.
     5    4.  For  purposes of this section "person" means any individual, firm,
     6  company, partnership, corporation, joint  venture,  joint-stock  associ-
     7  ation, association, trust or legal entity.
     8    5.  The  liability under this chapter of the New York black car opera-
     9  tors' injury compensation fund, inc. shall be limited to:  (i)  securing
    10  the payment of workers' compensation in accordance with article six-F of
    11  the  executive  law  to black car operators, as defined in such article,
    12  whose injury arose out of and in the course of providing services for  a
    13  central  dispatch facility, as defined in such article, that is a regis-
    14  tered member of such fund, and (ii) any statutory penalty resulting from
    15  the failure to secure such payment. The liability under this chapter  of
    16  a  central  dispatch facility, as defined in article six-F of the execu-
    17  tive law, that is a registered member of the New York black  car  opera-
    18  tors'  injury compensation fund, inc. that shall be limited to remaining
    19  a registered member in good standing of  such  fund  and  any  statutory
    20  penalty,  including loss of immunity provided by this section, resulting
    21  from the failure to become or remain a registered member in good  stand-
    22  ing  of  such fund, except, however, that such central dispatch facility
    23  shall be subject to the provisions of section one hundred thirty-one  of
    24  this  chapter  and  shall  be  liable  for any payments for which it may
    25  become responsible pursuant to such section or pursuant to section four-
    26  teen-a of this [chapter] article.
    27    6. The liability under this chapter of the New York independent livery
    28  driver benefit fund, inc. shall be limited to: (i) securing the  payment
    29  of  workers'  compensation  coverage  to cover those matters required by
    30  article six-G of the executive law for independent  livery  drivers,  as
    31  defined  in such article, whose injury arose out of and in the course of
    32  providing covered services for a livery base, as defined in  such  arti-
    33  cle,  that  is  a registered member of such fund, and (ii) any statutory
    34  penalty resulting from the failure to secure such payment.
    35    7. Notwithstanding any other provision of law, an  employee  suffering
    36  an  injury or personal injury as a result of a sexual offense as defined
    37  in article one hundred thirty of the penal law, due to negligent acts or
    38  omissions of the employer shall be entitled to all rights  and  benefits
    39  available pursuant to this chapter and, in addition may pursue any reme-
    40  dy  available in equity or at law for compensation for damages resulting
    41  from such injury.  Any insurance carrier providing workers' compensation
    42  benefits pursuant to this section shall be entitled to  a  lien  on  any
    43  damages  awarded  pursuant  to  this section, provided that no such lien
    44  shall be in an amount greater than the amount of benefits paid  by  such
    45  insurance carrier.
    46    §  5. Subdivision 6 of section 29 of the workers' compensation law, as
    47  amended by chapter 635 of the laws  of  1996,  is  amended  to  read  as
    48  follows:
    49    6.  The right to compensation or benefits under this chapter, shall be
    50  the  exclusive  remedy  to  an  employee, or in case of death his or her
    51  dependents, when such employee is injured or killed by the negligence or
    52  wrong of another in the same employ, unless such employee was injured or
    53  killed as a consequence of a sexual offense, as defined in  article  one
    54  hundred  thirty  of the penal law, the employer's insurer or any collec-
    55  tive bargaining agent of the employer's employees or  any  employee,  of
    56  such  insurer  or  such collective bargaining agent (while acting within

        S. 4537                             4
     1  the scope of his or her employment).  The limitation of liability of  an
     2  employer  set  forth in section eleven of this article for the injury or
     3  death of an employee shall be applicable to another in the same  employ,
     4  the  employer's  insurer, any collective bargaining agent of the employ-
     5  er's employees or any employee of the employer's insurer or such collec-
     6  tive bargaining agent (while acting within  the  scope  of  his  or  her
     7  employment).  The option to maintain an action in the courts for damages
     8  based  on  the  employer's  failure  to  secure compensation for injured
     9  employees and their dependents as set forth in section  eleven  of  this
    10  article  shall  not  be  construed  to  include the right to maintain an
    11  action against another in the same employ, the employer's  insurer,  any
    12  collective  bargaining agent of the employer's employees or any employee
    13  of the employer's insurer or such  collective  bargaining  agent  (while
    14  acting within the scope of his or her employment).
    15    § 6. This act shall take effect immediately.
feedback