The Scaffold Law Stalemate

New York’s Scaffold Law, a state provision that protects workers at construction sites, has for years withstood attacks from critics and attempts to reform it. As this year’s legislative session winds down, state lawmakers do not expect the outcome this time around to be any different.

“I am optimistic that this is something we can change moving forward, just not as optimistic about something being done this year,” said state Sen. Patrick Gallivan, the sponsor of a bill that would amend Labor Law 240, commonly known as the Scaffold Law, in an attempt to reduce liability insurance costs for construction firms.

Defenders of the law, who say it is essential to ensure worker safety, pushed back this year with proposed legislation that would require insurance companies to open their books to show the actual impact the Scaffold Law has on rates charged to construction firms. That bill could still come up for a vote in the final weeks of the session, but it is also a long shot to pass.

“I don’t think there are going to be any changes this year,” said Meghan Tadio, chief of staff to Assemblyman Francisco Moya, who introduced the bill to require more transparency on the part of insurers. “We’re still hoping we can get the insurance companies to come to the table and have an open discussion about the real issue, and to have some transparency.”

The lack of progress is unsurprising, given the entrenched positions on either side of the issue. Gov. Andrew Cuomo likely put the final nail in the coffin earlier this session when he told Crain’s that “you can’t change” the Scaffold Law. The governor attributed the lack of progress in part to the opposition to reform posed by the state’s trial lawyers lobby, which he called “the single most powerful political force in Albany.” Labor unions and immigrant advocacy groups have also fiercely defended the law.

At issue is the impact the law has on insurance rates. The law holds construction companies and developers fully liable whenever a worker is hurt in a “gravity-related” accident, unless every precaution was taken to protect the worker. Even if a worker is partially responsible for the injury, the company is considered to be fully responsible in such cases, resulting in substantial settlement payments that drive up insurance costs. Some critics argue that employers are held fully liable even when they have taken every necessary step to protect workers, although the law’s defenders dispute that point.

Gallivan, along with Assembly Majority Leader Joseph Morelle, has introduced legislation in recent years that would amend the law by introducing a comparative liability standard, in effect making the injured worker partially liable if he or she was at fault to some extent.

Gallivan argued that the law is inherently unfair and that the high costs tied to the Scaffold Law also create a barrier to entry for new or smaller firms. But Gallivan said that the long odds for reform were made even longer when Cuomo reached a deal to secure the Working Families Party’s endorsement, which raised tensions between Senate Republicans and the governor.

A spokesman for Morelle said that while the debate would likely be put on hold until next year, it’s only a matter of time before changes are made.

“Unfortunately, at this juncture we can’t provide a time line for when we expect that to happen,” said Sean Hart, a Morelle spokesman. “But at the end of the day this is not a conversation that is going to go away, and we’re going to continue to work with the key stakeholders toward passage of this bill.”

Supporters of the Scaffold Law, meanwhile, rallied around Moya’s bill this session. Questioning the premise that the law is actually raising costs significantly, Moya and others put pressure on the insurance industry to demonstrate such an impact before moving forward with any reforms.

“The aim of the Construction Insurance Transparency Act is to get some hard facts,” Moya said. “Opponents of the Scaffold Safety Law claim that the law drives up costs, but the truth is that we just don’t know if that’s the case. Show us the facts. Then we can make an informed decision about whether or not the Scaffold Safety Law should be altered.”

Tadio, Moya’s chief of staff, said that the assemblyman would be open to negotiating with insurance companies, but that his office had not been approached with any suggestions as to how to alter or amend the bill to make it more palatable.

“His perspective on it is we don’t want to talk about reforming it until we have all the information from the insurance companies, and we’re really just trying to address the issue to protect the workers legislatively and make sure we have all of the facts before we talk reform,” Tadio said. “Until the insurance companies open their books and give us the hard numbers we’re looking for, we’re happy with it staying as is.”