Business groups renew proposal to ditch New York’s Scaffold Law

ALBANY — Dozens of business advocacy and local government groups penned a letter to Gov. Andrew M. Cuomo on Tuesday calling for him to include a repeal of a state law that has been on the books since the 1800s that puts the blame for workplace accidents solely on the shoulders of the business — regardless of the worker’s relative responsibility in their own injury.

The statute, known as the Scaffold Law, holds employers and building owners to an “absolute liability” standard whenever a worker is injured or killed in an accident involving a fall from an elevated surface. New York is the only state in the country with such a law.

Imagine the famous photo “Lunch Atop a Skyscraper,” in which the construction workers building 30 Rockefeller Plaza sit with their lunches on an outstretched steel beam, nothing beneath them to stop them from falling to their deaths if they slip. Workplaces like that are why the law exists in the first place.

Proponents of the law, such as labor unions or personal injury lawyers, say it is essential to keeping workers safe.

“In light of several years in a row now of record high construction deaths, our concern is that repealing or reforming laws that protect workers could provide opportunities for bad actors to lower the standard for safety on jobs,” said Anthony Fresina, business manager for Local 190 of the Laborers’ Union. “Our priority is, and always will be, the health and safety of our members and all workers within the construction industry.”

Critics of the law note that it was passed before the development of federal workplace safety standards, and is now outdated. They point to what they characterize as inflated insurance premiums for construction projects in the state and say that it’s common sense that if a judge finds a worker to be 2 percent responsible for their own injury, their payout in an injury claim should be 2 percent less. They also say there’s no evidence the law actually leads to safer workplaces, since employees don’t have a legal incentive to be responsible for their own safety.

The letter, signed by 44 groups such as the New York Conference of Mayors, the Farm Bureau, construction and builders groups and the Capital Region Chamber of Commerce, asks Cuomo to include a repeal of the Scaffold Law as part of his budget proposal for the state’s next fiscal year. With the state facing a multibillion-dollar budget calamity as a result of COVID-19, this would be one way to make each dollar stretch a bit further, the letter says.

“We cannot let special interests hold our state and municipal budgets hostage any longer,” the letter says. “We stand behind you and urge you to finally fix this law and bring New York into the 21st Century and help us recover and heal from this terrible pandemic.”

Tom O’Connor, vice president for governmental affairs for the Capital Region Chamber of Commerce, said changing the law would save New York taxpayers $700 million and private businesses as much as $1.4 billion.

“If that’s going to be a savings for school districts, local governments and the private sectors, you’re addressing part of your fiscal crisis — and you’re also promoting economic growth, both of which the state absolutely needs right now,” he said.

Assemblyman John McDonald, D-Cohoes, introduced the standalone bill to repeal this law. He described the fight to ensure passage as “an uphill battle” due to the political influence of trial lawyers and labor unions with the Democratic party.

“If it’s ever going to happen, it’s going to happen in the budget process, no doubt about it,” he said. It’s at that time of the legislative calendar when bulky omnibus legislation can be passed at once, and a sticky political issue like the Scaffold Act could squeak through.

McDonald’s pitch for the bill is simple: The Scaffold Law adds as much as 7 percent to construction costs that other states don’t have, which is particularly hard on schools and local governments trying to pay for construction projects, and there’s not much evidence it actually makes New York a safer place for construction workers. The last assertion is backed up by a peer-reviewed study of the Scaffold Law by the national Transportation Research Board.

“I would never want to promote something that would make the workplace more unsafe, but there’s been no evidence as to that,” McDonald said. “I would rather invest in people and projects than in out-of-state insurance companies.”

The lawmaker also said high insurance costs in New York due to the Scaffold Law make it artificially difficult for small, minority-owned businesses to make bids and break into the industry.

“The labor community would tell you that it’s unfair that people may die and they’re not being compensated, and I get that,” McDonald said. “This is not meant to penalize the injured worker, but if somebody makes a mistake that contributes to the accident then that needs to be taken into account in the fuller picture.”

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