Article 28. Toxic Substances

Section 875. Definitions.

When used in this article:

1. "Employer" means any individual, partnership, corporation or association engaged in a business who has employees including the state and its political subdivisions. The term "employer" does not include the employment of domestic workers or casual laborers employed at the place of residence of his or her employer.

2. "Toxic substance" means any substance which is listed in the latest printed edition of the national institute for occupational safety and health registry of toxic effects of chemical substances or has yielded positive evidence of acute or chronic health hazards in human, animal or other biological testing.

3. "Workplace" means any location away from the home, permanent or temporary, where any employee performs any work-related duty in the course of his employment.

Section 876. Notice requirements.

Notice to employees and their representatives regarding toxic substances.

1. Every employer shall post a sign in every workplace at the location or locations where notices to employees are normally posted, to inform employees that they have a right to information from their employer regarding the toxic substances found in the workplace and a description of the toxic effects of these substances and the circumstances under which these effects are produced.

2. Until such time as the commissioner in consultation with the commissioner of health determines that there is a federal program in effect which will guarantee substantially similar protection to employees, each employer shall make available in writing to each employee, and if so requested their representatives, information relating to all toxic effects and the circumstances under which these effects are produced from the toxic substances to which the employee may be exposed in the course and scope of employment.

3. It shall be the responsibility of the employer to obtain information relating to toxic substances from: the manufacturer; the New York state department of health; the Federal Environmental Protection Agency's Chemical Substances Information Network; and the Health Hazard Evaluation Program of the National Institute of Occupational Safety and Health.

4. Subject to the limitations set forth in section eight hundred seventy-seven of this article, any manufacturer, importer, producer or formulator of any toxic substance shipped or transported or sold for any use within the state must provide, upon request, the following information:

(a) the name or names of the toxic substance, including the generic or chemical name;

(b) the trade name of the chemical and any other commonly used name;

(d) the acute and chronic effects of exposure at hazardous levels;

(e) the symptoms of such effects;

(f) the potential for flammability, explosion and reactivity of such substance;

(g) appropriate emergency treatment;

(h) proper conditions for safe use and exposure to such toxic substance;

(i) procedures for cleanup of leaks and spills of such toxic substance.

5. Whenever an employer receives new information concerning those subjects listed in subdivision four of this section, whether from the manufacturer, importer, producer or formulator or from state or federal agencies, such employer must make such new information available to employees and if so requested, their representatives upon receipt of same.

6. Each employer shall make available to every employee the informational leaflets that he receives about the toxic substances information program pursuant to section forty-eight hundred four of the public health law.

7. Upon receipt of a request for information the employer must provide the requested information in writing within seventy-two hours, excluding weekends and public holidays. If the information is not provided, the employee may not be required to work with the toxic substance until the information is made available.

8. Provision of information to an employee shall not in any way affect the liability of an employer with regard to the health and safety of an employee or other persons exposed to toxic substances, nor shall it affect the employer's responsibility to take any action to prevent the occurrence of occupational disease as required under any other provision of law. Further, it shall not affect any other duty or responsibility of a manufacturer, producer, or formulator to warn ultimate users of a toxic substance pursuant to any other provisions of law.

Section 877. Trade secrets.

1. When a manufacturer, producer, formulator or employer considers the identity of or other information concerning a toxic chemical substance to be a protectable trade secret or a proprietary process whose disclosure would compromise his competitive advantage and when other applicable provisions of the health law are satisfied, he may register this information as secret with the commissioner of health.

2. Manufacturers, producers, formulators and employers who so register a substance, process or product with the commissioner of health must inform in writing, employers who request information relating to such substance, and employees and their representatives, that such substance or process constitutes a registered trade secret or proprietary process and that information regarding the toxic effects of such substance is only available without identifying information and must provide such information without identifying data.

3. No officer, employee or agent of any state or municipal department, agency, commission or authority shall disclose to anyone in any manner any record or portions thereof protected pursuant to this article and which are within his custody or knowledge for so long as such record or portions thereof shall be so exempted or until a final judicial denial of such exemption is rendered. Any person who violates any provision of this subdivision may be fined, suspended or removed from office or employment in the manner provided by law.

Section 878. Employee education and training.

1. Every employer shall institute an education and training program for employees routinely exposed to toxic substances.

2. The education and training program shall commence prior to initial assignment and shall be repeated at least annually thereafter. Additional instruction must be provided whenever the potential for exposure to toxic substances is altered.

3. The education and training program shall include, but may not be limited to, the following:

(a) the location of toxic substances to which the employee may be exposed;

(b) the properties of toxic substances to which employees may be exposed;

(d) the trade name of the chemical and any other commonly used name;

(e) the acute and chronic effects of exposure at hazardous levels;

(f) the symptoms of effects of exposure at hazardous levels;

(g) the potential for flammability, explosion and reactivity of such substance;

(h) appropriate emergency treatment;

(i) proper conditions for safe use and exposure to such toxic substance;

(j) procedures for cleanup of leaks and spills of such toxic substance.

Section 879. Records.

Employers shall keep a record of the name, address and social security number of every employee who handles or uses a substance or substances included in section nineteen hundred ten of the federal occupational safety and health regulations, subparagraph z and which such substance or substances was or were handled or used by which employee. Such record shall be made available to each affected employee, former employee, designated physician or representative and the commissioner of health, upon request, for examination and copying. Such record shall be kept for forty years. Such records shall be sent to the department of health if the employer's establishment ceases to operate within the state of New York.

Section 880. Employees' rights.

1. Employees or their representatives may request in writing from employers and shall receive all information relating to toxic substances set forth in subdivision three of section eight hundred seventy-eight of this article.

2. If an employee has requested information about a substance pursuant to subdivision seven of section eight hundred seventy-six of this article, and has not received information within the time allowed therein, the employee may not be required to work with such substance.

3. No employer shall discharge, or cause to be discharged, or otherwise discipline, or in any manner discriminate against any employee because such employee has filed any complaint or has instituted, or caused to be instituted, any proceeding under or related to the provisions of this article, or has testified, or is about to testify, in any such proceeding, or because of the exercise of any right afforded pursuant to the provisions of this article on such employee's behalf or on the behalf of others, nor shall any pay, position, seniority, or other benefits be lost for exercise of any right provided by this article.

4. Any employee who believes that he or she has been discharged, disciplined, or otherwise discriminated against by any person in violation of this section may, within thirty days after such violation occurs or thirty days after the employee first obtains knowledge that a violation did occur, file a complaint with the industrial commissioner alleging such discrimination. Upon receipt of such complaint, the industrial commissioner shall cause such investigation to be made as he deems appropriate. If upon such investigation, the industrial commissioner determines that the provisions of this section have been violated, he shall request the attorney general to bring an action in supreme court against the person or persons alleged to have violated the provisions of this section. In any such action the supreme court shall have jurisdiction to restrain violations of this section and to order all appropriate relief, including but not limited to civil penalties as set forth in section eight hundred eighty-two of this article, hiring, rehiring or reinstatement of the employee in employment together with the payment of any compensation otherwise actually lost as a result of such violation.

5. Within ninety days of the receipt of a complaint filed under this section the industrial commissioner shall notify the complainant and his representative by registered mail of his determination.

6. Any waiver by an employee or applicant for employment of the benefits or requirements of this article shall be against public policy and be null and void.

7. Any employer's request or requirement that an employee waive any rights under this article as a condition of employment shall constitute an act of discrimination.

Section 881. Powers of the industrial commissioner.

The industrial commissioner may promulgate such regulations as he shall consider necessary and proper to effectuate the purposes and provisions of this article.

Section 882. Penalties.

1. Civil penalty. Any employer who fails to comply with the provisions of this article shall be liable for a civil penalty not to exceed ten thousand dollars in addition to any other damages for which an employer may be liable pursuant to any other provision of law. The attorney general may bring an action in the supreme court against any person or persons alleged to have violated the provisions of this article. In any such action the supreme court shall have jurisdiction to restrain violations of this article and to levy appropriate penalties. Any penalty assessed for the violation of any of the provisions of this article shall be payable to the commissioner of health to be utilized for the purposes of environmental health pursuant to section forty-eight hundred two of the public health law.

2. Criminal penalty. Any person who willfully and intentionally violates the provisions of this article is guilty of a misdemeanor and upon conviction shall be punished, for a first offense, by a fine of not more than five hundred dollars, or by imprisonment for not more than thirty days or by both such fine and imprisonment; for a subsequent offense by a fine of not more than one thousand dollars, or by imprisonment for not more than ninety days, or by both such fine and imprisonment.

Section 883. Separability.

If any section, clause or provision of this article shall be unconstitutional or be ineffective in whole or in part, to the extent that it is not unconstitutional or ineffective, it shall be valid and effective and no other section, clause or provision shall on account thereof be deemed invalid or ineffective.