Get the Facts
12 THINGS YOU NEED TO KNOW ABOUT THE SCAFFOLD SAFETY LAW
1. The Scaffold Safety Law (codified in New York’s Labor Law Section 240) is a common sense measure that requires safety equipment and training for construction workers, making New York construction sites among the safest in the country. It is a time-tested safety measure that has saved countless lives. Under the law, property owners and general contractors, who control the worksite and are in the best position to oversee safety, are responsible for providing protections for their workers. An owner or contractor is not held liable for such accidents unless their failure to provide proper safety equipment caused a worker’s injury. Liability can be avoided simply by having the proper safety equipment in place. Despite these basic requirements, developers and contractors are trying to avoid responsibility, jeopardizing the safety of their workers.
2. Owners and general contractors have defenses available to them, can have their day in court, and can avoid liability by providing workers with the proper, legally required safeguards. All that owners and general contractors must do to avoid liability is comply with our worksite safety laws and provide workers with the necessary mandated safety equipment and training, including “scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.” If they do what they are legally required to, they will not be held responsible for accidents that occur.
3. The Scaffold Safety Law does not impose strict liability or automatically hold owners and contractors liable regardless of the circumstances of the accident. If workers fail to avail themselves of safety devices made available to them by owners and general contractors, or if workers fail to heed warnings or follow directions, they will not be able to bring a claim with success. There is no ‘automatic’ finding of fault regardless of the circumstances, as the industry and its lobbyists have claimed. Some have claimed the law protects workers who are intoxicated — this is completely untrue. If alcohol or drug use causes an accident to occur, the property owner/general contractor is not held liable.
4. Weakening the Scaffold Safety Law would shift safety responsibility from owners and general contractors, who control the site, to workers. Construction workers do not control the manner in which the work is performed, nor do they supply the material or safety devices used on the project. Workers are there to perform manual labor to complete work ordered by the general contractor and owner of the project so the project is done to their specifications. Since workers don’t have control over safety issues on the jobsite, the responsibility for safety should rest squarely on the owner and general contractor.
In today’s construction industry, many projects provide financial incentives for getting the job done ahead of schedule. Without strong laws to protect workers, incentivizing speed jeopardizes safety, and the results can be deadly.
5. Weakening the law would also shift the burden of construction accidents onto taxpayers, creating extra workers’ comp and public assistance costs. Restricting the rights of injured workers to recover against contractors and owners will force them to turn to Medicaid or public assistance when their workers compensation benefits are exhausted and they are still unable to work and support themselves.
Due to recent workers compensation reform, seriously injured workers can only receive benefits for a limited time. Without the ability to hold law-breaking contractors responsible in court, injured workers will have no choice but to turn to Medicaid, public assistance and other government benefits – shifting the burden from the contractors whose negligence caused their injury to New York taxpayers.
6. OSHA is not keeping construction sites safe. OSHA acknowledges that it can inspect only about one construction site per day in the entire New York metro area. In large part, OSHA arrives after a significant accident occurs and investigates why the accident happened, handing out fines for violations thereafter, which are very often insignificant in dollar amount in comparison to the size of the job. OSHA itself cannot prevent accidents from occurring. The New York Committee for Occupational Safety & Health has reported that OSHA’s fines are insufficient deterrents. Studies have shown that at approximately one in three OSHA construction sites in New York, inspectors found serious violations of safety standards. Employers violated these standards in 80% of the accidents where a worker fell and was killed.
7. The Scaffold Safety Law is not slowing construction or costing us valuable construction jobs. In fact, construction is booming: a recent Buffalo News article quoted construction executives as saying, “this is by far the busiest I’ve ever seen our area,” and, “this has been one of the better years in the construction market” while the New York Building Congress projects a 13% increase in NYC construction employment between 2012 and 2015, i.e. 15,000 more jobs – they say we are on track to have some of the highest levels of employment in construction since 1995.
8. New York is not the only state with a scaffold type law. A number of other states have liability statutes specific to scaffold safety and other equipment for working at an elevation; in Ohio, there are even criminal penalties for employers who violate it. In fact, most states actually make it easier than NY to hold owners and contractors liable for non-height related construction accidents. New York’s Scaffold Safety Law exists because of the recognition that working at heights is especially hazardous. For all other construction accidents, New York applies a relatively weak liability standard requiring an industrial code violation (Labor Law 241(6)). At least 17 states–but not NY–apply an even stricter standard: owners can be held vicariously liable for construction injuries and deaths even if they didn’t directly control the job site.
9. New York liability insurance rates are not rising because of the Scaffold Safety Law. Contractors’ liability insurance rates are rising across the country. In August 2012, an Insurance Journal report cited double-digit increases for liability insurance nationwide, quoting Michael Anderson, Leader of Marsh’s U.S. Construction Practice: “U.S. construction firms are experiencing a much more challenging liability market as underwriters seek to raise rates and restrict coverage to make up for years of soft market conditions. Moreover, the premium increases contractors are reporting come after years of decreases.
10. No data has been released that actuarially justifies the premiums insurers are charging for liability insurance in public construction projects. To understand if insurers are making excessive profits, the industry must release annual data on premiums earned, numbers of claims closed/with loss payment, total claims payments, reserves, expenses by category, investment income, and amount of exposure. This data must separate out Labor Law 240 claims, and be provided for an extended period for affected rating classes. In the absence of such data, the legislature is being unfairly called upon by owners, contractors, and insurance companies, to alter safety laws and put workers at risk, without providing any proof of the need to even begin to consider doing so.
11. The Scaffold Safety Law is not a major impediment to the growth of small minority and women owned business enterprises. As Bertha Lewis, President of the Black Institute, wrote in the Amsterdam News, “Nobody questions that up-and-coming MWBEs face a crowded market and difficult environment as they seek to establish themselves. But the Scaffold Safety Law is not to blame.” In fact, Lewis and others have argued that because a weakened Scaffold Safety Law would lead to more accidents, it would actually put small MWBEs and the workers they employ at greater risk. A serious accident poses a far greater risk to a small MWBE’s future business prospects and ability to maintain their state licenses than it does to large construction firms, as they often face additional scrutiny that the big players are not subject to. It does make sense to train and educate small contractors starting out in the construction industry on safety in the workplace. It does not make sense to put the employees of the small contractors at risk of life and limb.
12. The Scaffold Safety Law is a critical protection for minority and immigrant workers, who are the workers facing the greatest risk of injuries and fatalities. According to the Center for Popular Democracy, workers of color are disproportionately endangered because they work in construction in relatively high numbers, are concentrated in smaller, non-union firms, and are over-represented in the contingent labor pool. CPD’s study of OSHA-investigated construction falls from 2003-2011 found that in 60% of fall from an elevation fatalities statewide, the worker was Latino and/or immigrant, In NYC, 74% of fatal fall victims were Latino or immigrant workers. 86% of the Latino and/or immigrant fatal fall victims were working for a non-union employer – meaning these workers lack the protection of a union before and after accidents happen.
Troublingly, Latino workers in focus groups reported overwhelmingly being too scared to speak up and raise safety concerns with their employer, for fear of retaliation. The stories are endless – workers being told to do the work or get off the job; workers being told after an accident not to tell anyone what happened; workers being told to do a construction job they’ve never done before without any training whatsoever. Weakening the Scaffold Safety Law would only exacerbate these problems.