Construction worker safety is caught in the middle of a long-simmering — but now escalating — debate over the continuing merits of a unique New York law requiring safe scaffolding.
Opponents of the so-called Scaffold Law — New York Labor Law 240 — that assigns absolute liability to contractors and property owners when workers suffer any gravity-related injury say it is unfair, costly, and invites documented insurance fraud. Backers say the law, with 19th-century roots, has prevented many deaths and injuries because by putting the entire burden of worker safety on the parties responsible for designing and managing working-from-height conditions that are inherently dangerous, it demands full compliance with rigorous safety rules.
The two camps have traded barbs over the years, but efforts to repeal or modify the law have failed, leaving in place the nation’s only state law that presumes up front that construction employers (and the developers/owners they contract with) bear responsibility for worker falls from heights. Now, though, the law’s opponents think they see an opening and are mobilizing and mounting a renewed push to reform it or take it off the books.
In September, a coalition of state and national business groups formed to back federal legislation introduced in May that would preempt the law’s application on federally funded projects in the state. The Build More New York Coalition, claiming to have more than 50 members, including the National Electrical Contractors Association (NECA) and other construction-related groups, supports the Infrastructure Expansion Act introduced by Rep. Nick Langworthy (R-NY) that would exempt New York projects from the Scaffold Law’s absolute liability provision if federal funds are utilized. Instead, liability would be assessed using a comparative negligence legal approach in place across the rest of the country, which more readily takes worker negligence into consideration.
In a Sept. 4 news announcing the coalition the Real Estate Board of New York stated that the New York law “has driven insurers out of the market, reduced competition, and raised premiums, making it even harder to develop housing and other essential infrastructure projects in an already challenging environment.” Rep. Langworthy’s bill, it says, “offers a targeted solution by ensuring that projects in New York use the same liability standard as in every other state.”
The release includes quotes from 20 coalition members largely lamenting the law’s impact on economic growth and praising the Langworthy alternative as a better approach to matters of determining liability and controlling rising costs that are stifling progress. Most of the supportive comments, however, address more completely the burdensome aspects of the New York law than they do matters of worker safety and how those might be impacted, if at all, if a change were made.
The core issue many referenced was the problem of fraud and the cascading consequences: recent documented cases of staged or faked injuries designed to take advantage of the law’s presumption of employer liability to easily extract billions in costly claims and the resultant rise in liability insurance costs and exit of insurers.
It includes a May commentary posted by NECA that had Marco Giamberardino, senior vice president of government and public affairs, saying that “by ensuring that federal infrastructure projects are governed by a fair, comparative negligence standard rather than outdated absolute liability rules, this bill protects both contractors and property owners while preserving access to critical federal funding,” amounting to “commonsense reform that promotes safety, accountability, and much-needed investment in our nation’s roads, bridges, transit systems, and energy networks.”
Another supporting comment was from the Building Trades Employers Association President Elizabeth Crowley saying that “every union contractor in New York will tell you the same thing: the Scaffold Law is crushing their businesses by driving insurance costs to the highest in the nation. Congressman Langworthy’s bill is a lifeline — it will finally level the playing field, protect good-paying union jobs, and free up resources to build the projects New Yorkers urgently need, all while saving taxpayers millions.”
The comment most focused on worker safety considerations came from Christopher A. Koetzle, Executive Director, New York Association of Towns. The New York law, he says, unfairly leaves worker negligence out of the equation, but “reform is not about reducing safety standards.”
Groups opposed to reform efforts say it will lead to a loosening of safety protocols. The law requires owners and their agents to provide and enforce worker use of proper fall protection and has detailed rules on the structure and maintenance of scaffolding. Those mandates, bolstered by the strict liability provision, supporters say, have proven to be a good formula for limiting worker falls and bodily harm.
A detailed analysis of the law prepared by LVW, a New York personal injury law firm, argues it has been effective in its core mission of protecting workers and ensuring the recovery rights of those injured on the job are protected. And while acknowledging some isolated cases of fraud it disputes claims that insurance costs have risen to the point where construction has slowed, especially in New York City.
“Although construction remains a hazardous occupation, the strict liability imposed by the Scaffold Law has clearly pushed employers toward safer practices, helping to prevent countless injuries,” the report argues, citing evidence from studies.
The other side presents statistics of its own, showing that construction activity has been affected, fraud is a serious and growing problem, and that absolute liability does not translate to fewer injuries.
The Build More New York Coalition release claims “construction workers in New York are no safer than workers in other states,” citing as evidence a bridge project connecting New York and New Jersey. Injury claims, it says, were twice as high on the New York side, “despite identical conditions.” The state’s injury and fatality rates, it said, exceed those in most states, one of which — Illinois — saw construction fatalities decline after it repealed a similar liability law, proof, it says, that “reform can enhance safety.”
