The Real Deal: Is this the year New York’s scaffold law gets reformed?

By: Kathryn Brenzel

The conventional wisdom is that when a headline asks a question, the answer tends to be no. 

In this case, Gov. Kathy Hochul didn’t include any such legislation in her executive budget. Nor does there seem to be a ton of momentum at the state level to push through changes this year. Plus, it is an election year.

But there’s a lot of attention around how to make it easier to build housing in New York. During last week’s state budget hearing on housing, some housing groups (including the New York Housing Conference and New York Association-Affordable Housing) noted their support of changing the scaffold law to, at the very least, exclude any affordable housing with regulatory agreements from a city or state housing agency. 

The scaffold law holds owners and general contractors fully liable for gravity-related injuries on construction sites. Opponents have long argued that it drives up construction costs, while proponents say it is critical to ensuring worker safety. 

The Building Trades Employers’ Association, which represents general contractors, estimates that insurance makes up 8 to 10 percent of total construction costs, compared to other states that use a comparative negligence standard (a court determines who was at fault, decreasing an employer’s liability if the employee’s own negligence contributed to the fall) where it represents 2 to 4 percent. 

Build More New York, a statewide coalition that formed last year, has its sights set on change at the federal level. A bill proposed by Rep. Nick Langworthy, the Infrastructure Expansion Act, would preempt the scaffold law on projects that receive federal funding, meaning that a comparative negligence standard would apply instead of absolute liability. This would have major implications for housing projects, as it would apply to those receiving federal low-income housing tax credits.  

John Faso, who formerly represented New York’s 19th congressional district and is now advising the coalition, proposed similar legislation in 2017. He sees federal preemption as the only way to curb the scaffold law, given the lack of political will in New York.     

“The trial lawyers and the building trades have a hammer lock on the state legislature,” he said.  

Construction unions have opposed the federal proposal as well. In an op-ed for the Times-Union last year, Building and Construction Trades Council President Gary LaBarbera argued that the bill represented not just an attack on worker protection, but also on state autonomy. He said the scaffold law has been “a beacon of construction site safety and contractor accountability for more than a century.”

Faso said the coalition hopes that the Infrastructure Expansion Act is included in another must-pass legislation. The group has been pushing for the changes to be included in the surface transportation authorization bill, which will replace the current Infrastructure Investment and Jobs Act, which expires in September.