November 21, 2017
Construction Worker Falls and New York’s New Scaffold Law
By Jonathan Damashek
Earlier this year, a report by the New York Committee for Occupational Safety and Health (NYCOSH) found not only that New York construction fatalities are on the rise, but also that many construction companies consistently violate code requirements and regulations. According to this report, 30 New York City construction workers have died during the past two years and nearly 500 died during the past decade. There were 400 injuries and at least six deaths in 2015 alone.
The report also stated that U.S. Bureau of Labor Statistics data for 2015, apparently the latest year for which such data is available, revealed that 59 percent of NYC construction deaths and 49 percent of statewide construction deaths resulted from falls. In addition, 68 percent of construction site inspections resulted in the discovery of safety violations.
Occupational Health and Safety Administration (OSHA) data for 2015 showed that safety violations were found in over 90 percent of inspections of construction fatality sites. The highest danger was to nonunion construction workers. In fact, workers employed by nonunion companies suffered 78% of New York construction accidents.
Scaffold design and construction
FindLaw reports that approximately 65 percent of construction workers frequently work on scaffolds. Consequently, some of the most common and serious worker injuries are caused by falls from scaffolds, lifts, hoists and ladders and/or by workers being hit by debris falling from such objects. Accidents can result from such things as the following:
- Defective equipment
- Improperly installed equipment
- Improperly designed equipment
- Improper use of the equipment
OSHA requires that scaffold design and construction conform to standards of use. For instance, each component of the scaffold, and the scaffold as a whole, must be able to support four times its maximum intended load without failing. Each suspension rope must be able to support at least six times its maximum intended load.
Lack of inspections
In a 2015 article entitled “Unsafe at any height: It’s more dangerous than it has been in years to work in construction,” Craine’s New York reported that most serious construction accidents are the result of workers falling from heights. Contractors for buildings over 10 stories tall must have their own onsite inspector in addition to the inspections they may receive from OSHA or the Department of Buildings. Buildings under 10 stories tall, although they may account for 95 percent of job sites, don’t have nearly that much oversight. They seldom are required to have a site-safety manager and they are unlikely to receive a visit from OSHA or the DOB.
Both OSHA and the DOB are severely understaffed. In 2015, DOB had about 500 inspectors to oversee the approximately 34,000 construction sites in NYC; OSHA had fewer than 80 inspectors statewide. So despite the fact that NYC has some of the strictest safety rules in America, some contractors fail to follow them, realizing that random inspections are spotty at best. Most violations are not discovered until after an accident has occurred.
Construction Fraud Task Force
As reported by Modern Home Builder, with NYC construction at an all-time high, the New York County District Attorney’s office created a new Construction Fraud Task Force in 2015 to investigate fraud, bribery, bid rigging, tax issues and safety violations in the construction industry. In its first few months, Task Force agents arrested 50 building inspectors, two of whom were bureau chiefs, alleging such things as taking bribes to expunge safety violations from the official record. They also arrested over 30 workers accused of using forged safety cards saying they had completed the accredited OSHA training course.
One of the purposes of the Task Force is to make it known that criminal prosecutions indeed are possible whenever a construction accident occurs. Historically, such prosecutions were rare because it is difficult to prove that construction companies willfully ignored safety rules. It is believed that by beefing up criminal reviews for each accident, construction companies will change their behavior and institute stricter safety measures, knowing they could face criminal sanctions as well as civil liability.
New York’s Scaffold Law
New York’s Labor Law 240, also known as the Scaffold Law, is the only one in the country that provides for absolute liability on the part of work site owners and contractors whenever an accident occurs. This means that when injured workers sue for compensation, they need not prove that they were actually employed by the construction company. Some New York case law also suggests that it is irrelevant if a worker’s own carelessness or negligence was partially to blame for his or her injuries. Personal injury lawsuits typically result in settlements or judgments in the millions, some over $20 million.
Scaffold Law opponents argue that such large payouts, plus the increased insurance premiums construction companies and premises owners must pay for coverage against this increased exposure to liability, harms the construction industry as a whole. Worker safety activists counter that the Scaffold Law holds contractors responsible, makes work sites safer, and allows injured workers to receive compensation for expenses not covered by workers’ compensation.