One of photographer Charles Ebbets' most enduring images shows a group of ironworkers perched atop a steel girder, hundreds of feet above New York City, eating lunch. No safety device, no harness, lanyard, safety line, not so much as a hard hat is present. It was 1932 and they sat along a beam that would become part of the 69th floor of the GE Building at Rockefeller Center.
We marvel at the courage and audacity of those men. We also see the reasons for the origination of New York State Labor Law 24 0/2 41, now known as the Scaffold Law.
Under the Scaffold Law, contractors, employers and property owners are held 100 percent liable for any gravity-related injury of a worker, even when the worker is at fault. That may have made sense back in 1932, when ironworkers labored in shirt sleeves and worn shoes, but times have changed.
OSHA regulations have been in place since 1970; Workers' Compensation laws have been enhanced. The safety of workers in high-risk occupations is at the forefront of our consciousness now more than ever before. In fact, new safety protocols, equipment and regulations have mitigated risks so much so that ours is the only state where a Scaffold Law still exists.
Proponents of the law claim it increases safety. Statistics prove otherwise. Fatality rates from gravity-related risks have actually declined in states without Scaffold Laws. In fact, the rate of occupational fatalities among construction workers in New York far exceeds the national average.
Still, New York clings to this obsolete law.
Sure, it's a boon for trial lawyers reaping high rewards for clients and high fees for themselves, but everyone else loses. Contractors, small, or large, new businesses or established, must pay skyrocketing insurance fees to mandatorily assume a risk they cannot defend against.
This is true even when an injured worker neglects to use available safety equipment he is trained to use. Because of insuring against absolute liability, premiums in New York are 20 percent to 30 percent higher than if the same job were located in Pennsylvania or Ohio.
Contractors who can't afford the insurance go out of business or leave New York State, taking their jobs with them. Where the contractor can pay the insurance, the cost is passed along to the consumer in yet another addition to the already high cost of doing business in New York. Add Scaffold Law insurance premiums to permit fees, license fees, "special code" inspection fees, high utility costs, high real estate and sales taxes, and you get a sum that wreaks havoc on the bottom line of any New York business.
This problem is not exclusive to contractors and developers. Homeowners take a major hit in higher costs. Residential contractors are forced to pass their insurance costs along to homeowners by increasing the price of the job. Thanks to this exorbitant insurance premium, New Yorkers who build a home or put an addition on an existing home end up paying much more than they would if the Scaffold Law were less expensive to insure against.
It's an increased cost that hits New York State homeowners in two ways, in both the short and long terms. Short term, homeowners pay a higher price for the initial work. Long term, their increased assessment equates to higher real property taxes.
Local government and local schools also get stuck paying for the Scaffold Law. But unlike homeowners, who have to foot the bill for their contractors' increased costs, governments and schools have an out. They pass it on to the taxpayers. Large projects, like the modernization of the Buffalo Public Schools, would be considerably less expensive if the Scaffold Law were amended.
Consider what happens when a claim is successfully brought against local government. In Bissell v. Town of Amherst (2008), a worker doing an estimate on town property was injured due to negligence. Under the Scaffold Law, the worker sued and was awarded $23.4 million, an amount more than double the town's liability coverage. Had the town been able to defend itself, town residents may not be paying for that ruling.
The time is right to amend the Scaffold Law. Legislation pending in Albany would give contractors, owners and their agents an opportunity for defense when sued by an injured worker. One bill (A.2336/S.4648), sponsored by Assemblyman Robin Schimminger and Sen. Steven Saland, would allow upstate New York courts to determine liability in Scaffold Law claims. This would balance the rights of each party, simply bringing such suits in line with other personal injury claims, where liability is determined on a case-by-case basis.
Another bill, sponsored by Assemblyman Joseph Morelle, (A.2835), would make the same reforms for both upstate and downstate. Both bills would result in balanced laws that lower costs, keep jobs in New York and still protect the health and safety of our workers.
What can you do? Call your assemblyman and senator and voice your opinion on these important bills. Special interest groups will be pressuring the Legislature to defeat them, so your involvement is crucial.
Laura Zaepfel is vice president of corporate relations at Uniland Development Co. and sits on the board of directors of NAIOP, Upstate New York Chapter.