United States: Hold On To Your Hard Hats: Updates On Construction Site Safety In New York

Last Updated: June 12 2017
Article by David J. Pfeffer and Laurie A. Stanziale

In New York City, construction of some sort is always moving forward and, as such, worksite injuries and fatalities unfortunately will occur. The Commercial Observer's "The State of Construction Safety" conference on May 4 brought together major players in the enforcement and construction community, including the Commissioner of the Department of Buildings (DOB) Rick Chandler, to discuss strategies for keeping workers safe through proper training and supervision, and for reducing the number of deaths and accidents on construction sites in New York City and throughout the state. In case you missed it, Construction partner Laurie Stanziale provides five important takeaways from the conference:

1. Safety Must Come From the Top. This has been said over and over, yet the message is still not getting through - neither at the highest levels of the contractor nor the ownership. All of the panelists concurred that senior-level sponsorship is one of the most important factors in bringing real improvements in construction safety.

Unfortunately, there is a distance between owners and their site's safety compliance. Since violations are issued against the contractor, owners may shrug off the importance of safety and rely on their contractors to handle resolution. However, if a Stop Work Order (SWO) is issued, regardless what the contractor-owner agreement may say, the owner will be harmed by the delay - and this alone should lead them to care more about the safety of the job site.

Contractors must properly and thoroughly vet their subcontractors. Each subcontractor should come on the job with its own safety plan and responsible individuals, all of which should be incorporated into the overall project safety plan.

If the District Attorney's office gets involved (which means things have really gone awry), their advice is to make sure that documentation and records of safety measures are in place. There is a major difference between saying you have these documents and actually being able to produce them. Creating the safety measures after the fact will not help you in the eyes of the law.

2. The City Council's Construction Safety Act. The Construction Safety Act, consisting of 21 separate bills, has been proposed by City Council. The Act has been fiercely debated, particularly in regard to the mandatory apprenticeship program, but the DOB indicated that they are continuing discussions with the City Council as to the details of the bills.

The main issue with the apprenticeship program is that these initiatives are usually organized by, or include, the unions. However, when non-union contractors apply independently for such a program, it can cost them an excessive amount of time and money. One potential solution that's been suggested is a hybrid program that would mandate safety standards industry-wide without making a distinction between union and non-union trades.

The Building Trades Employers' Association (BTEA) said that there would have been a benefit to having the trade organizations participate in the process of formulating the legislation, and that they could play such a role in the future. The problem is that when unions are asked to comment after drafting of legislation is completed and any changes they request are largely viewed by the public as "the trades being opposed" or "having self-interested goals," which clouds the process.

Some bills have passed which include a minimum civil penalty of $2,500 for failing to report all worker injuries to the DOB. The fine for failing to report a death can be up to $25,000.

The Construction Safety Act is a culmination of several attempts to implement regulations designed to crack down on unsafe practices in the construction industry. Nearly two years ago, in response to the death of a construction worker at a Manhattan work site, New York City officials announced the formation of the Construction Fraud Task Force, an interagency initiative charged with proactively investigating construction-related crimes. In a Real Estate Weekly article on the creation of the task force, David Pfeffer, the chair of Tarter Krinsky's Construction practice group, noted that the construction industry has been notorious for its failure to self-regulate, telling the publication that "the more construction you have, the more chances there are for accidents."

3. Safety for Projects of All Sizes. Many safety regulations apply solely to buildings over 10 stories - such as superintendent requirements, increased number of site safety managers, requirements that the Building Enforcement Safety Team (BEST) Squad approves of site safety plans and enhanced worker training. However, most accidents and fatalities actually occur on buildings that have fewer than 10 stories. The great safety culture at 10+ floors should apply to all, said Brian Sampson of Associated Builders and Contractors (ABC). Recently, in April 2017, the City Council did pass bills that require a construction superintendent and a safety plan for buildings under construction that are more than four stories high.

4. Fire Safety. Hot-button issues for the FDNY and issues that can result in violations or SWOs are: (A) The FDNY must be able get in, and workers must be able to get out. (B) Standpipes need to be installed where the FDNY can access them and where they can reach all levels of the project. (C) Combustible materials at a job site need to be properly stored and disposed of. Note: The majority of FDNY violations are issued at night because of the failure to properly address combustible materials at the end of the work day.

5. Safety Can Be Engineered. There are exciting advances in safety technology that will greatly enhance projects of all shapes and sizes. They are the wave of the future and likely will be arriving soon at a construction site near you. The days of bulky tethering systems are moving behind us as modernized systems of protection allow workers to get the job done comfortably and safely. Cocoon systems, while not required by the DOB, add an increased level of safety for workers and the public. Parapets can be designed to create built-in fall protection. Building Information Modeling (BIM) and virtual reality "tours" of the job site can help identify safety hazards. Smart vests can track workers locations as well as body temperature and heart rate to alert supervisors to a potential accident before it happens.

Overall, the industry is taking construction safety seriously and the system, while a work in progress, is seen by most industry players to be moving in the right direction. Complete elimination of accidents is not likely, because they can happen even in the best of circumstances. However, our continued goals should be to reduce the number of construction-related accidents and focus on finding ways to make construction safer for all involved in the industry.

Take a look at our previously published alert on Construction Safety: Lessons From 2016 and Remedies for 2017 for more information on construction safety.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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