Sec. 830.2. Definitions

As used in Labor Law, section 27-a, and in this Part:

(a) Abatement date means the date listed on the notice of violation and order to comply by which an employer is required to correct a cited violation, or such later date approved by the commissioner pursuant to an employer's petition to modify the abatement date or agreed upon at an informal conference.

(b) Commissioner means the Commissioner of Labor of the State of New York.

(c) Compliance date means the date upon which an employer has corrected a cited violation, as verified by the commissioner or to the satisfaction of the commissioner by the employer.

(d) Department means the Department of Labor of the State of New York.

(e) Employer means the State, any political subdivision of the State, a public authority or any governmental agency or instrumentality thereof.

(f) Health violation means a violation which could result in an abnormal condition, disorder or death caused by exposure to environmental factors associated with employment. Such conditions include acute and chronic illnesses which may be caused by the inhalation of, absorption of, ingestion of, or direct contact with environmental factors. Some of these conditions may be, but are not limited to, skin diseases, dust diseases of the lungs, respiratory conditions of the lungs due to toxic agents, poisoning (systemic effect of toxic materials), disorders due to physical agents, disorders associated with repeated trauma. Conditions from which health violations could result include all occupational illnesses.

(g) Safety violation means a violation which could result in an occupational injury such as, but not limited to, a cut, fracture, sprain, amputation, burn, electrocution or death, which results from an exposure involving a single incident in the work environment. All violations not classified as a health violation are included in this category.

(h) Serious violation means a violation for a condition in a place of employment if there is a substantial probability that death or serious physical harm could result from the condition, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use in the place of employment, unless the employer did not know, and could not, with the exercise of reasonable diligence, have known of the presence of the violation.

(i) Non-serious violation means a violation which does not fall under the definition of a serious violation. (Also referred to as other violation or other-than-serious violation.)

(j) Repeat violation means a violation by an employer, where the employer had previously been issued a notice of violation and order to comply for a substantially similar condition at the same site or sites under the same supervision, had previously removed the violation and had allowed the violation to reoccur.

(k) Willful violation means a violation of a safety and health standard, provision, or regulation, where evidence shows either an intentional and knowing violation of the standard, provision, or regulation or plain indifference to the requirements of such standard, provision, or regulation, as further defined below.

(1) An intentional and knowing violation occurs when:

(i) the employer was aware of the requirements of the standard, provision, or regulation and was also aware of the existence of a condition or practice in violation of such requirement, and made little or no effort to correct the violation; or

(ii) the employer was not aware of the requirements of Labor Law, section 27-a or of the regulations promulgated under Labor Law, section 27-a, but was aware of a comparable legal requirement (e.g., other state law or local law) and was also aware of a condition or practice in violation of that requirement.

(2) A violation in plain indifference to the requirements of a standard, provision, or regulation occurs where:

(i) the employer's higher management was aware of a requirement applicable to their operations but made little or no effort to communicate the requirement to lower level supervisors and employees; or

(ii) management was aware of a continuing compliance problem but made little effort to avoid violations; or

(iii) management was not aware of any legal requirement but was aware that a condition or practice was hazardous to the safety or health of employees and made little or no effort to determine the extent of the problem or to take corrective action; or

(iv) finally, in particularly flagrant situations, willfulness can be found despite a lack of knowledge of either a legal requirement or of the existence of a hazard if the circumstances show that the employer would have placed no importance on such knowledge even if it had possessed it.