On October 16, 2017, Mayor Bill de Blasio signed Local Law 196, formerly known as Intro 1447-C, construction safety training legislation sponsored by New York City Councilmen Jumaane Williams (D-Flatbush) and Carlos Menchaca (D-Sunset Park).
The New York City Building Code now requires that “each permit holder at a building site for which a construction superintendent, site safety manager or site safety coordinator is required” (a “Permit Holder”) is responsible for documenting that their workers have adequately completed the requisite safety training. The way to comply with Local Law 196 is to document that every worker at the building site possesses an appropriate OSHA Site Safety Training (“SST”) Card, and that at least one responsible person at the job site has an OSHA SST Supervisor Card.
New Construction Safety Training Mandates for Workers and Supervisors
The safety training mandates of Local Law 196 are going to be phased in gradually over the course of 2018 and 2019. The ordinance was drafted to authorize the New York City Department of Buildings (“DOB”) to have some flexibility in administering rulemaking by establishing a Joint Task Force composed of the DOB Commissioner, representatives from labor unions, unionized contractors, non-union contractors, minority-owned businesses, women-owned businesses, and day laborers. The City Council has delegated authority to the Joint Task Force to determine the content of the safety training, the final safety training hours requirements, and the implementation dates.
If implemented as intended, Local Law 196 mandates will apply to the Permit Holder at every “building site for which a construction superintendent, site safety manager, or site safety coordinator is required” (a “Covered Building Site”). Now construction superintendents are required for all “major construction projects”, including:
The only exception to the 2016 DOB construction superintendent mandate is for 1, 2, and 3 family homes.
In addition, the Local Law 196 construction safety training mandates apply to all Workers at a Covered Building Site. “Workers” include people working in several phases of construction, including renovations, excavation, and demolition. Workers also include all employees of the prime contractor and any subcontractors alike, or anyone acting on behalf of the Permit Holder.
By December 1, 2018 (the “Interim Compliance Date”), Permit Holders will have to ensure that every Worker at every Covered Building Site has completed at least 30 hours of safety training (“the “Interim Worker Safety Training Mandate”). An OSHA-30 card will be the standard during an interim period from December 1, 2018 to the Final Compliance Date. During this interim period, a Worker who has completed the OSHA-10 will be able to obtain a temporary card that will allow them to complete the rest of their OSHA-30 while they are working at the Covered Building Site.
By the Final Compliance Date - which is still to be determined but will most likely be sometime in 2019 - the DOB Task Force will have determined the "Final Safety Training Mandate". According to Local Law 196, the Final Safety Training Mandate must be between 40 and 55 hours. By the Final Completion Date, Permit Holders will have to ensure that each Worker has either an OSHA SST card or a temporary OSHA SST card. Limited SST cards will no longer suffice.
In addition to the Safety Training Card Mandate, by December 1, 2018, the Permit Holder will have to comply with the “Superintendent Training Mandate”. The Permit Holder will have to document that at least one person at the job site has a SST supervisor card, specifically every worker who is serving as construction superintendent, or as site safety manager, site safety coordinator, concrete safety manager, or otherwise “a competent person at such site” (the “Superintendent”).
Recordkeeping and Reporting Mandates for Permit Holders
Keep in mind that the construction safety training mandates do not apply only to individual workers; Local Law 196 establishes recordkeeping and reporting mandates on every Permit Holder for a Covered Building Site.
By March 1, 2018, each Permit Holder must comply with the “Recordkeeping Mandate” by doing the following:
It is imperative that the Permit Holder for every Covered Building Site strictly comply with the Recordkeeping Mandate. Even if everyone working at the Covered Building Site has complied with the training mandates, a Permit Holder found to be lacking proper logs for a given work day is presumed to be noncompliant.
Consequences for Non-Compliance with Local Law 196
Denial of DOB Permits
Going forward, NYC DOB will make granting permits for construction and demolition work conditional on the permit applicant’s compliance with Local Law 196. If the applicant for construction or demolition work does not certify that all of the workers will be compliant with the Local Law 196 construction safety training mandates, DOB will deny permits.
Violations for Worker’s Failure to Complete Safety Training
If the NYC DOB Commissioner determines “that a worker at a building site is not in compliance” with any of the new training mandates, the Commissioner will issue a notice of violation to the Permit Holder, the non-compliant worker’s Employer (if the Employer is different from the Permit Holder), and the Owner of the job site. Even if they are separate entities, DOB can charge each of the Permit Holder, Employer, and Owner with separate violations and issue separate civil penalties.
In the event that DOB determines that a Permit Holder is in violation of Local Law 196, the Permit Holder will have to pay for the costs of the Worker to obtain the required safety training or “otherwise arrange” for the Worker to receive the safety training at no cost to the non-compliant Worker. The non-compliant Worker will have to remain employed at the Building Site under the same terms and conditions, and must be paid as though he or she were working at the job site 40 hours each week at the same wage.
Violations for Failure to Maintain the Daily Compliance Log
If a Permit Holder at a Covered Building Site has not maintained a daily log recording the names of each Worker at the site and each Worker’s respective safety training cards, that is a per se violation of Local Law 196. If DOB determines that a Permit Holder failed to maintain a log, it establishes a rebuttable presumption that each Worker for whom the Permit Holder is responsible for ensuring compliance “is not compliant”, and it will result in notices of violation for each unrecorded day worked by each Worker.
For “lesser violations” of Local Law 196, DOB can impose a penalty up to $500 for each violation. For “major violations”, DOB can impose a penalty up to $10,000 for each violation. To boot, DOB can impose an additional penalty of up to $250 for each month that the “major violation” is not corrected. For “immediately hazardous violations”, DOB can impose a civil penalty up to $25,000 for each violation. DOB can also impose an additional penalty up to $1,000 for each day that the “immediately hazardous violation” is not corrected.
At present, the statute is unclear as to what precisely constitutes a “lesser violation” versus a “major violation” or an “immediately hazardous violation” of Local Law 196, and it appears that DOB will have wide discretion in meting out civil penalties.
If you have reason to believe that any members of your work force are lacking an OSHA-30 card, it would be wise to start planning for the Interim Compliance Date which will most likely come into effect on December 1, 2018. Also, do not forget that your superintendent, safety supervisor, or another “competent person” will have to comply with the Superintendent Training Mandate by December 1, 2018 as well.
Even if your entire workforce already has their OSHA-30 cards, stay tuned for the Joint Task Force’s determination of the Final Worker Safety Training Mandate which may range anywhere between 40 and 55 hours. Also, stay tuned for the Joint Task Force's announcement of the Final Compliance Date. This will be the subject of a future legal alert.
Remember that if you are the Permit Holder for a Covered Building Site, you are responsible for not only your own employees, but also for every one of your subcontractor’s compliance with the safety training mandates. Do not expose yourself to risk by hiring subcontractors whom you know are lacking their OSHA cards.