[Code of Federal Regulations]
[Title 29, Volume 9]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1956.50]

[Page 153-155]
 
                             TITLE 29--LABOR
 
CHAPTER XVII--OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT 
                          OF LABOR (CONTINUED)
 
PART 1956_STATE PLANS FOR THE DEVELOPMENT AND ENFORCEMENT OF STATE 
 
                           Subpart F_New York
 
Sec. 1956.50  Description of the plan as initially approved.

    Authority: Secs. 8(g), 18, 84 Stat. 1600, 1608 (29 U.S.C. 657(g), 
667); 29 CFR part 1956, Secretary of Labor's Order 9-83 (48 FR 35736).

    Source: 49 FR 23000, June 1, 1984, unless otherwise noted.


    (a) Authority and scope. The New York State Plan for Public Employee 
Occupational Safety and Health received initial OSHA approval on June 1, 
1984. The plan designates the New York Department of Labor as the State 
agency responsible for administering the plan throughout the State. The 
plan includes legislation, the New York Act (Public Employees Safety and 
Health Act, Chapter 729 of the Laws of 1980), enacted in 1980, and 
amended on April 30, 1984, to clarify the State's right of entry for 
inspection authority. Under this legislation, the Industrial 
Commissioner (now the Commissioner

[[Page 154]]

of Labor), has full authority to enforce and administer all laws and 
rules protecting the safety and health of all employees of the State and 
its political subdivisions. In response to OSHA concern that language in 
section 27-a(2) of the New York Act, regarding the Commissioner of 
Education's authority with respect to school buildings, raised questions 
about the coverage under the plan of public school employees, New York 
submitted amendments to its plan consisting of Counsel's opinion and 
assurance that public school employees are fully covered under the terms 
of the New York Act. In a March 4, 1984 letter from Lee O. Smith, Deputy 
Commissioner of Labor for Legal Affairs, New York indicated that the 
Commissioner of Education's authority applies only to ensuring the 
safety and health of pupils, and that the Commissioner of Labor has 
exclusive authority to enforce occupational safety and health standards 
covering public employees in school buildings. Furthermore, New York has 
provided assurance that should the Department of Labor's interpretation 
on coverage of public school employees be challenged successfully, 
appropriate legislative correction would be sought.
    (b) Standards. The New York plan provides for the adoption of all 
Federal OSHA standards promulgated as of July 31, 1983, and for the 
incorporation of any subsequent revisions or additions thereto in a 
timely manner, including in response to Federal OSHA emergency temporary 
standards. The procedure for adoption of Federal OSHA standards calls 
for publication of the Commissioner of Labor's intent to adopt a 
standard in the New York State Register 30 days prior to such adoption. 
Subsequent to adoption and upon filing of the standard with the 
Secretary of State, a notice of final action will be published as soon 
as is practicable in the State Register. The plan also provides for the 
adoption of alternative or different occupational safety and health 
standards if a determination is made by the State that an issue is not 
properly addressed by OSHA standards and is relevant to the safety and 
health of public employees. In such cases, the State shall propose 
legislation mandating the development of an alternative standard to 
protect the safety and health of public employees. The procedures for 
adoption of alternative standards will contain criteria for development 
and consideration of expert technical knowledge in the field to be 
addressed by the standard, and provisions allowing interested persons to 
submit information requesting development or promulgation of any 
standard and to participate in any hearing for the development, 
modification or establishment of standards.
    (c) Variances. The plan includes provisions for the granting of 
permanent and temporary variances from State standards in terms 
substantially similar to the variance provisions contained in the 
Federal Act. The State provisions require employee notification of 
variance applications as well as employee rights to participate in 
hearings held on variance applications. Variances may not be granted 
unless it is established that adequate protection is afforded employees 
under the terms of the variance.
    (d) Employee notice and discrimination protection. The plan provides 
for notification to employees of their protections and obligations under 
the plan by such means as a State poster, and required posting of 
notices of violations. The plan also provides for protection of 
employees against discharge or discrimination resulting from exercise of 
their rights under the State's Act in terms essentially identical to 
section 11(c) of the Federal Act.
    (e) Inspections and enforcement. The plan provides for inspection of 
covered workplaces including inspections in response to employee 
complaints. If a determination is made that an employee complaint does 
not warrant an inspection, the complainant shall be notified, in 
writing, of such determination and afforded an opportunity to seek 
informal review of the determination. The plan also provides the 
opportunity for employer and employee representatives to accompany the 
inspector during an inspection for the purpose of aiding in the 
inspection. The plan also provides for right of entry for inspection and 
prohibition of advance notice of inspection. In lieu of monetary 
penalties for violations, the plan establishes a scheme of enforcement 
for compelling

[[Page 155]]

compliance under which public employers are issued notices of violation 
and orders to comply, for any violation of standards and orders. Such 
notices will fix a reasonable time for compliance. The Commissioner of 
Labor may seek judicial enforcement (mandamus actions) of orders to 
comply by commencing a proceeding pursuant to Article 78 of the New York 
Civil Practice Law and Rules against public employers who fail to abide 
by the requirements of the order.
    (f) Review procedures. Under the plan, employers, employees and 
other affected parties may seek informal review with the Department of 
Labor of a notice of violation, including the reasonableness of the 
abatement period, and/or may seek formal administrative review with the 
Industrial Board of Appeals, the independent State agency authorized by 
section 27-a(6)(c) of the New York Act to consider petitions from 
affected parties for review of the Commissioner of Labor's 
determinations pursuant to the New York Act. The ``Rules of Practice and 
Procedure'' of the Industrial Board of Appeals also permit public 
employees or their representatives to participate in the review process 
when a public employer contests a notice. Judicial review of the 
decision of the Industrial Board of Appeals may be sought pursuant to 
Article 78 of the New York Civil Practice Law and Rules. The period 
fixed in the plan for contesting notices of violation is 60 calendar 
days, which is significantly longer than the 15 working day period 
allowed under the Federal OSHA program. However, New York has provided 
assurance, by Counsel's opinion of March 4, 1984, that it has the 
authority under Article 78 of the New York Civil Practice Law and Rules 
to obtain judicial enforcement of an uncontested order to comply upon 
expiration of the period stipulated for abatement, regardless of whether 
the 60 day contest period has expired or not. New York has also assured 
that should the State Labor Department's interpretation be challenged 
successfully appropriate legislative correction would be sought.
    (g) Staffing and resources. The plan provides assurances of a fully 
trained, adequate staff, including 30 safety and 8 health compliance 
officers for enforcement inspections and 10 safety and 12 health 
consultants to perform consultation services in the public sector. The 
State has also given satisfactory assurances of adequate funding to 
support the plan. In addition, the plan assures that New York will meet 
the compliance staffing benchmarks established pursuant to the terms of 
the court order in AFL-CIO v. Marshall (CA 74-406).
    (h) Records and reports. The plan provides that public employers in 
New York will maintain appropriate records and make timely reports on 
occupational injuries and illnesses in a manner substantially identical 
to that required for private sector employers under Federal OSHA. New 
York has assured that it will continue its participation in the Bureau 
of Labor Statistics Annual Survey of Injuries and Illnesses and will 
include the public sector under its plan after approval. The plan also 
contains assurances that the Commissioner of Labor will provide reports 
to OSHA in such form as the Assistant Secretary may require, and that 
New York will participate in OSHA's Integrated Management Information 
System.
    (i) Voluntary compliance programs. The plan provides that training 
will be provided to public employers and employees; seminars will be 
conducted to familiarize affected individuals with OSHA standards and 
requirements (as adopted by New York), and safe work practices; an on-
site consultation program in the public sector will be established to 
provide services to public employers who so desire; and, all State 
agencies and political subdivisions will be encouraged to develop and 
maintain self-inspection programs as an adjunct to but not substitute 
for the Commissioner of Labor's enforcement inspections.