ENR East: New York’s Scaffold Law is Breaking the System it Was Meant to Protect

By: Charles “Chip” Pierce

I have spent my career advising owners, developers and contractors across New York. During that time, I have seen projects stall, deals collapse, and companies struggle for all kinds of reasons. But nothing distorts the way construction works in this state quite like the Scaffold Law.

Enacted in 1885 as New York Labor Law § 240, it was designed to protect workers at a time when construction was far more dangerous and far less regulated than it is today. That purpose still matters, but the way the law operates today bears little resemblance to the world it was written for.

The Scaffold Law imposes absolute liability on owners and contractors for gravity-related injuries, regardless of fault. If a worker falls, liability is essentially predetermined. It doesn’t matter what safety measures were in place, whether the worker ignored them, or even whether the owner or contractor did anything wrong.

New York is the only state in the nation where this is the case. Every other state applies a comparative negligence standard, where responsibility is shared based on the facts giving rise to the accident. H.R. 3548, the Infrastructure Expansion Act, currently under consideration in Congress, could introduce that same standard to certain federally connected projects in New York.

New York’s current law continues to negatively impact the market in ways that are becoming harder to ignore. Not long ago, I worked with a family-run roofing contractor that had been in business for more than 30 years. After a fatal accident, there was no finding of negligence, but because of the Scaffold Law, that didn’t matter. The contractor’s insurance carrier refused to renew the insurance, replacement coverage was either unavailable or unaffordable, and as soon as the insurance policy expired, the company shut its doors, costing dozens of workers their jobs.

Insurance carriers have been quietly retreating from New York’s market for years. Premiums have surged, coverage has tightened, and owners are being forced to layer policies in ways that would be unthinkable elsewhere. Even non-admitted excess insurance carriers permitted by the state to fill the gap are limited, and their policies often contain troublesome endorsements, limiting coverage in ways that sometimes make the coverage worthless - such as excluding injuries caused by falls from heights.  Perhaps most concerning, the pool of qualified contractors is shrinking because fewer firms can meet the insurance thresholds or costs required to bid on projects.

At the same time, New York is asking the industry to build more housing, more infrastructure, and to do it faster. Those goals are fundamentally at odds with a liability regime that increases costs and limits participation at every level of the construction process.

The state has set a goal of creating 800,000 new homes during the next decade, but construction in New York is already expensive, and insurance tied to the Scaffold Law is a big part of that. Those costs get baked into every project and, for affordable housing where margins are already thin, that can be the difference between a project moving forward or falling apart. 

The Infrastructure Expansion Act (H.R. 3548) isn’t a cure-all. It applies only to federally financed projects, those receiving federal tax incentives, or those requiring federal permitting. But it does offer a way to start changing the conversation. By moving to a comparative negligence standard, even in a limited context, it would take some pressure off the insurance side, make it easier for more contractors to participate, and introduce a level of predictability that’s been missing for a long time. Even on a smaller scale, that kind of shift could show what a more balanced system would look like and what it might mean for housing if applied more broadly.

ENR recently examined another piece of this ecosystem—how personal injury litigation tied to construction accidents has intersected with lawsuit lending, particularly in cases involving immigrant workers. That reporting underscores how the Scaffold Law shapes behavior and outcomes far beyond the jobsite. 

None of this is to suggest that worker protections should be weakened. Construction is inherently dangerous work, and safety must remain the priority. But there is a difference between protecting workers and removing any consideration of fault.

For years, efforts to reform the Scaffold Law in Albany have failed. The politics are entrenched, and meaningful change at the state level has proven elusive. That’s why attention has shifted to Washington and the Infrastructure Expansion Act (H.R. 3548), which would effectively override the state’s absolute liability framework for qualifying projects and help rebalance risk, ease pressure on the insurance market, and broaden the field of contractors able to participate in public work.

A coalition of nearly 50 organizations—including the Associated General Contractors of New York State, the Building Trades Employers Association, the Real Estate Board of New York and the Partnership for New York City—has rallied behind the bill, with one industry group calling it a “lifeline” for contractors struggling under the weight of insurance costs and leaving fewer and fewer able to operate.

What is often lost in the broader debate is the cumulative effect of these pressures. When contractors leave the market, projects become more expensive, fewer get built, and the consequences are felt not just by developers and contractors, but by workers and communities as well. 

The Scaffold Law is not widely understood outside New York, but its impact is felt every day within it. It influences who can build, what gets built and how much it costs to do so. From where I sit, advising clients who are navigating these realities in real time, the question is no longer whether the system is under strain, but how long we are willing to operate under a framework that no longer fits the industry it governs.

Worker protection and shared responsibility are not competing ideas, and in every other state they coexist. New York’s refusal to reconcile the two is a policy choice, and one that is impacting the state’s economy and housing affordability.

Charles "Chip" Pierce joined Rosenberg & Estis, P.C. is head of the firm’s construction dept. Pierce is a Fellow of the Construction Lawyers Society of America and recognized as a NY Metro Super Lawyer in the field of construction litigation. He is also a member of the Diversity Law Institute and the Trial Law Institute.  He is a trained mediator and frequent lecturer for CLSA, the Practicing Law Institute and Lorman Education Services on construction law topics.