Times Union: Scaffold Law bad for New York business

the Albany Times Union published an op-ed by Senator Fred Akshar (R-Colesville) and Assemblymember John McDonald (D-Cohoes) calling on Governor Cuomo and their fellow legislators to prioritize Scaffold Law reform as the state budget negotiations move forward. Text of the op-ed is available below and can be viewed online here.

As state legislators traveling our districts, we hear often about the need to invest in our crumbling infrastructure and the billions of dollars required to address the long-term deterioration of our roads and bridges, water and sewer infrastructure, schools or our airports. We also know someone who is in need of housing — either low income, for seniors and those struggling with substance abuse, developmentally disabled people or those who have mental health illness. No matter where you live in New York, these needs are real and they’ve all been impacted one way or another by an antiquated construction liability statue known as the “Scaffold Law”.

This statute from 1885 was important at the time because agencies like the federal Occupational Safety and Health Administration and New York’s Public Employee Safety and Health Bureau, along with modern training and technology, did not exist as they do today to provide both the employer and employee guidance for a safe and responsible work site. Over time, many court decisions have twisted the original intent of this law, as it has become one of the largest barriers to addressing our goals of building in our communities.

Across this state, the Scaffold Law wastes millions of our taxpayer dollars, through both public and private building projects. Under the law, judges apply “absolute liability,” a liability standard that is not seen anywhere else in our civil justice system or in any other state in our nation. This arcane standard inflates the cost of insurance on all construction in the state and must be reformed, not replaced.

The Rockefeller Institute of Government estimates that the law costs us $785 million in public funds each year and, according to the Port Authority, the liability costs on the New York side of a bridge are double what they are on the New Jersey side. A report released last year by the government-reform group Common Good noted a $300 million Scaffold Law-related increase to the price of a new cross-Hudson train tunnel.

Additionally, the law is also a barrier for minority- and women-owned businesses. The Building Trade Employers Association, which has a strong safety record in New York City, names the Scaffold Law as a significant obstacle to increasing the capacity of MWBE contractors. The law was also noted as a barrier by Habitat for Humanity and other disaster relief organizations as they struggled to rebuild following Superstorm Sandy.

Safety is ultimately most important, which is why the reform we propose would simply make liability proportional to fault and would not weaken the law’s safety provisions. By doing this, we are applying the same standard to every other type of liability throughout New York and we preserve the right for injured construction workers to sue, because we recognize the unique and dangerous nature of their work. We believe that proportional liability, when included in underwriting insurance, will lead to a reduction in the high insurance costs which we must hold insurance companies accountable for. In fact, according to a Cornell study peer reviewed by the Transportation Research Board of the National Academies of Science Engineering, and Medicine, “absolute liability” may actually increase the risk of work site accidents. Fixing the law would not only lower construction costs — which would allow firms to allocate more funds to hiring and compensation — it would actually create a safer work environment for all.

As lawmakers we must work together to solve problems and move this state forward. This is why we have decided to reach across the aisle and we stand ready to work with the governor and all of the stakeholders to fix this unjust and costly liability law. With the state budget currently under discussion, Scaffold Law reform should be a priority for all involved parties as we strive to make our state a more affordable place to live, with a friendlier business environment and more opportunity for our men and women in the labor force.

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