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STATE OF NEW YORK
________________________________________________________________________

838

2011-2012 Regular Sessions

IN ASSEMBLY

(PREFILED)

January 5, 2011
___________

Introduced  by M. of A. KELLNER -- read once and referred to the Commit-
  tee 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:

  Section 1. Short title.  This act shall be known and may be  cited  as
the "protection in the workplace act".
  S  2.  Legislative  intent. It is the finding of this legislature that
violence in the workplace has become  an  increasingly  serious  occupa-
tional hazard, which all too many employees and employers must confront.
While  it  is  the intent of the workers' compensation system to provide
medical aid and monetary compensation to injured workers or their survi-
vors in return for the surrender of their right to petition the  courts,
it  is  the  finding of this body that rape, sexual assault or other sex
crimes should not be classified as a  condition  of  employment  at  the
expense  of  the  workers'  compensation system's ameliorative goals and
that such system is not and should not be used as  a  shield  to  permit
employers  whose  negligent  acts  or  omissions cause injury or harm to
fellow employees without such injured employees having every opportunity
for full and adequate redress.   For purposes  of  determining  benefits
pursuant  to  the  workers' compensation law, sexual assault is not, and
shall not be considered a condition of employment.
  It is therefore the intent of this legislation to ensure that  workers
suffering  sexual assault in the workplace due to the derelict or negli-
gent practices of their employer, receive appropriate medical  care  and
benefits  but also have every opportunity to recover all damages commen-
surate with their injury.
  S 3. The workers' compensation law is amended by adding a new  section
10-a to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00660-01-1
A. 838                              2

  S 10-A. LIABILITY RESULTING FROM SEXUAL OFFENSES.  NOTWITHSTANDING ANY
OTHER PROVISION OF LAW, ANY EMPLOYEE SUFFERING INJURY OR PERSONAL INJURY
PURSUANT TO SUBDIVISION SEVEN OF SECTION TWO OF THIS CHAPTER AS A CONSE-
QUENCE  OF  A SEXUAL OFFENSE AS DEFINED IN ARTICLE ONE HUNDRED THIRTY OF
THE  PENAL  LAW DUE TO NEGLIGENT ACTS OR OMISSIONS OF THE EMPLOYER SHALL
BE ENTITLED TO ALL RIGHTS AND BENEFITS AVAILABLE PURSUANT TO THIS  CHAP-
TER  AND,  IN  ADDITION  MAY PURSUE ANY REMEDY AVAILABLE IN EQUITY OR AT
LAW, FOR COMPENSATION FOR ANY AND ALL DAMAGES RESULTING FROM SUCH  INJU-
RY.
  S 4.  Section 11 of the workers' compensation law, as amended by chap-
ter 635 of the laws of 1996, the opening paragraph as amended by chapter
169  of  the  laws of 2007, the fifth undesignated paragraph as added by
chapter 49 of the laws of 1999 and the closing  paragraph  as  added  by
chapter 392 of the laws of 2008, is amended to read as follows:
  S  11.  Alternative remedy. 1. The liability of an employer prescribed
by [the last preceding] section TEN OF THIS ARTICLE shall  be  exclusive
and in place of any other liability whatsoever, to such employee, his or
her personal representatives, spouse, parents, dependents, distributees,
or  any  person  otherwise  entitled to recover damages, contribution or
indemnity, at common law or otherwise, on  account  of  such  injury  or
death  or  liability arising therefrom, except that if an employer fails
to secure the payment of compensation for his or her  injured  employees
and  their  dependents  as provided in section fifty of this chapter, an
injured employee, or his or her legal representative in case [of]  death
results  from  the  injury,  may,  at  his or her option, elect to claim
compensation under this chapter, or to maintain an action in the  courts
for  damages  on  account of such injury; and in such an action it shall
not be necessary to plead or prove freedom from contributory  negligence
nor  may  the defendant plead as a defense that the injury was caused by
the negligence of a fellow servant nor that  the  employee  assumed  the
risk  of  his  or  her  employment,  nor  that the injury was due to the
contributory negligence of the employee. The liability under this  chap-
ter  of The New York Jockey Injury Compensation Fund, Inc. created under
section two hundred [thirteen-a] TWENTY-ONE of the  racing,  pari-mutuel
wagering  and breeding law shall be limited to the provision of workers'
compensation  coverage  to  jockeys,  apprentice  jockeys  and  exercise
persons  licensed  under  article two or four of the racing, pari-mutuel
wagering and breeding law and any statutory penalties resulting from the
failure to provide such coverage.
  2. For purposes of this section the terms  "indemnity"  and  "contrib-
ution"  shall not include a claim or cause of action for contribution or
indemnification based upon a provision in  a  written  contract  entered
into  prior  to  the  accident  or  occurrence by which the employer had
expressly agreed to contribution to or indemnification of  the  claimant
or person asserting the cause of action for the type of loss suffered.
  3.  An  employer  shall not be liable for contribution or indemnity to
any third person based upon  liability  for  injuries  sustained  by  an
employee  acting  within  the  scope  of  his or her employment for such
employer unless such  third  person  proves  through  competent  medical
evidence  that  such employee has sustained a "grave injury" which shall
mean only one or more of the following: death, permanent and total  loss
of  use  or  amputation  of  an arm, leg, hand or foot, loss of multiple
fingers, loss of multiple toes, paraplegia or  quadriplegia,  total  and
permanent blindness, total and permanent deafness, loss of nose, loss of
ear,  permanent and severe facial disfigurement, loss of an index finger
A. 838                              3

or an acquired injury to the brain caused by an external physical  force
resulting in permanent total disability.
  4.  For  purposes of this section "person" means any individual, firm,
company, partnership, corporation, joint  venture,  joint-stock  associ-
ation, association, trust or legal entity.
  5.  The  liability under this chapter of the New York black car opera-
tors' injury compensation fund, inc. shall be limited to:  (i)  securing
the payment of workers' compensation in accordance with article six-F of
the  executive  law  to black car operators, as defined in such article,
whose injury arose out of and in the course of providing services for  a
central  dispatch facility, as defined in such article, that is a regis-
tered member of such fund, and (ii) any statutory penalty resulting from
the failure to secure such payment. The liability under this chapter  of
a  central  dispatch facility, as defined in article six-F of the execu-
tive law, that is a registered member of the New York black  car  opera-
tors'  injury compensation fund, inc. that shall be limited to remaining
a registered member in good standing of  such  fund  and  any  statutory
penalty,  including loss of immunity provided by this section, resulting
from the failure to become or remain a registered member in good  stand-
ing  of  such fund, except, however, that such central dispatch facility
shall be subject to the provisions of section one hundred thirty-one  of
this  chapter  and  shall  be  liable  for any payments for which it may
become responsible pursuant to such section or pursuant to section four-
teen-a of this [chapter] ARTICLE.
  6. The liability under this chapter of the New York independent livery
driver benefit fund, inc. shall be limited to: (i) securing the  payment
of  workers'  compensation  coverage  to cover those matters required by
article six-G of the executive law for independent  livery  drivers,  as
defined  in such article, whose injury arose out of and in the course of
providing covered services for a livery base, as defined in  such  arti-
cle,  that  is  a registered member of such fund, and (ii) any statutory
penalty resulting from the failure to secure such payment.
  7. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, AN  EMPLOYEE  SUFFERING
AN  INJURY OR PERSONAL INJURY AS A RESULT OF A SEXUAL OFFENSE AS DEFINED
IN ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW, DUE TO NEGLIGENT ACTS OR
OMISSIONS OF THE EMPLOYER SHALL BE ENTITLED TO ALL RIGHTS  AND  BENEFITS
AVAILABLE PURSUANT TO THIS CHAPTER AND, IN ADDITION MAY PURSUE ANY REME-
DY  AVAILABLE IN EQUITY OR AT LAW FOR COMPENSATION FOR DAMAGES RESULTING
FROM SUCH INJURY.  ANY INSURANCE CARRIER PROVIDING WORKERS' COMPENSATION
BENEFITS PURSUANT TO THIS SECTION SHALL BE ENTITLED TO  A  LIEN  ON  ANY
DAMAGES  AWARDED  PURSUANT  TO  THIS SECTION, PROVIDED THAT NO SUCH LIEN
SHALL BE IN AN AMOUNT GREATER THAN THE AMOUNT OF BENEFITS PAID  BY  SUCH
INSURANCE CARRIER.
  S  5. Subdivision 6 of section 29 of the workers' compensation law, as
amended by chapter 635 of the laws  of  1996,  is  amended  to  read  as
follows:
  6.  The right to compensation or benefits under this chapter, shall be
the  exclusive  remedy  to  an  employee, or in case of death his or her
dependents, when such employee is injured or killed by the negligence or
wrong of another in the same employ, UNLESS SUCH EMPLOYEE WAS INJURED OR
KILLED AS A CONSEQUENCE OF A SEXUAL OFFENSE, AS DEFINED IN  ARTICLE  ONE
HUNDRED  THIRTY  OF THE PENAL LAW, the employer's insurer or any collec-
tive bargaining agent of the employer's employees or  any  employee,  of
such  insurer  or  such collective bargaining agent (while acting within
the scope of his or her employment).  The limitation of liability of  an
employer  set  forth in section eleven of this article for the injury or
A. 838                              4

death of an employee shall be applicable to another in the same  employ,
the  employer's  insurer, any collective bargaining agent of the employ-
er's employees or any employee of the employer's insurer or such collec-
tive  bargaining  agent  (while  acting  within  the scope of his or her
employment).  The option to maintain an action in the courts for damages
based on the employer's  failure  to  secure  compensation  for  injured
employees  and  their  dependents as set forth in section eleven of this
article shall not be construed to  include  the  right  to  maintain  an
action  against  another in the same employ, the employer's insurer, any
collective bargaining agent of the employer's employees or any  employee
of  the  employer's  insurer  or such collective bargaining agent (while
acting within the scope of his or her employment).
  S 6. This act shall take effect immediately.