Added Compliance Burdens: New York Nonprofits Have to Implement Workplace Violence Programs
In 2010, New York State enacted its New York Prudent Management of Institutional Funds Act (NYPMIFA); in 2012 Governor Cuomo promulgated Executive Order 38 capping excess compensation at nonprofits receiving government funding; and, in 2013 New York enacted the Non-Profit Revitalization Act. As if the compliance challenges of these new laws were not sufficiently daunting to nonprofits, particularly smaller ones, a new law now awaits the Governor’s approval.
In June, both houses of the New York State Legislature passed Bill No. A7721-2015 amending NYS Labor Law § 27-b, which will have far reaching implications for government funded nonprofits. Like public sector employers1, under NYS Labor Law § 27-b and its implementing regulation in 12 NYCCR § 800.6, government funded nonprofits will now need to perform a workplace violence risk evaluation at each worksite and to develop and implement programs to prevent and minimize workplace violence. The amendment achieves this by expanding the definition of “Employer” to include nonprofit organizations which receive at least 50 percent of their budget from municipal, state or federal government sources, including, but not limited to, Medicaid and Medicare, during the preceding fiscal year.2 In order to comply with the new law, government funded nonprofits will now need to undertake and/or develop each of the following:
- Perform a risk evaluation of their workplace to determine the presence of factors or situations that might place employees at risk of workplace violence. The Department of Labor has tools to aid employers in performing this evaluation posted on its website. Employers will also need to assess relevant policies, work practices and work procedures that impact the risk of workplace violence.
- Prepare a workplace violence program (preferably in writing, although this is only required for employers with 20 or more full-time employees) which lists the risk factors identified, the methods the employer will use to prevent workplace violence incidents, a hierarchy of controls to which the program will adhere, the methods and means by which the employer shall address each specific hazard identified in the workplace evaluation, a system designed and implemented to report any workplace violence incidents (the reports must be in writing and maintained for the annual program review), a written outline or lesson for employee program training, and a plan for program review and update on at least an annual basis (the review and update must set forth mitigating steps taken in response to any incident of workplace violence).
- Develop and implement a written policy statement on the employer’s workplace violence prevention program goals and objectives. The statement must be posted where notices to employees are normally posted and must briefly indicate the workplace violence prevention policy and incident alert and notification policies for employees to follow in the event of a workplace violence incident.
- Provide employee information and training on the risks of workplace violence at the time of employee’s initial employment and at least annually thereafter. At a minimum, the training will need to inform employees of the risk factors in the workplace, inform them of the measures they can take to protect themselves and the specific procedures the employer has implemented to protect employees. Employers with 20 or more full-time employees will also need to inform employees of the location of the written workplace violence program and how to obtain a copy and make it available for reference in the work area.
- Establish and implement reporting systems for workplace violence and document those records. All incidents of workplace violence or threats of violence are to be reported on a Workplace Violence Incident Report and the employer must conduct a review of the reports annually to identify trends in the types of incidents in the workplace and review of the effectiveness of the mitigating actions taken.
While the Bill has yet to be signed by Governor Cuomo and will be effective one year from the date of signing, implementing these measures will be a challenge to all government funded nonprofits, particularly smaller ones, and organizations should start considering and consulting with lawyers and other professionals on how to do so in a responsible and efficient manner.
1 Employers under Section 2810-a of New York’s Education law are excluded as there are already Codes of Conduct they need to follow under the Education Law.
2 While the implementing regulations have not been amended yet, presumably the definition of “Employer” therein will be amended and the provisions consistently applicable to government funded nonprofits as well.