By: Thomas H. Welby Published: October 2014

OSHA's Place in the Realm of Workplace Safety Law in New York

From time to time, I am asked whether violating OSHA makes the employer liable in a personal injury action — or, more generally, how OSHA fits into the framework of statutory and case law provisions designed to safeguard the health and safety of construction workers, and to give workers redress for injuries suffered on construction jobsites.

Broadly speaking, in New York there are four schemes, whereby federal and state laws endeavor to safeguard workers, and provide injured workers with compensation:

  1. Federal OSHA (the OSH Act, and the agency that enforces it);
  2. The New York State Industrial Code, and activities of the New York State Department of Labor;
  3. Workers’ Compensation; and
  4. Personal injury litigation, under the common law, and N.Y. Labor Law §§ 200, 240, and 241(6).

Additional facets of worker protection, having limited relevance to construction activities, will be mentioned only in passing.  One is that mine safety (mining is more widespread in New York than you might think) comes not under the OSH Act, but under the Mine Safety & Health Act of 1977.  Both the United States and New York Departments of Labor have agencies known as the “Mine Safety & Health Administration.”  The federal MSHA enforces the Mine Safety & Health Act, while the New York MSHA concentrates on safety and health training programs.  There also exist a Federal Employers’ Liability Act, and a Federal Railroad Safety Act as well.

As in New Jersey and Connecticut, New York’s state and local municipal employees are outside the protection of OSHA.  In New York, they come under the care of the Public Employee Safety & Health Bureau, part of the State Department of Labor.

Also, while liability insurance (as distinguished from Workers’ Compensation) is not a statutory or administrative program, to the extent that it is, in practice, mandated on many construction projects, such coverage provides resources potentially available to compensate injured workers.

While many states comply with the federal OSH Act through state-administered, “Little OSHA” agencies, in New York, New Jersey and Connecticut, most private-sector employment is overseen by federal OSHA.

 The NYS Industrial Code, and construction safety-related activities of the NYS Department of Labor, occupy a Zone straddling the boundary between preventative and compensatory aspects of New York’s employee safety environment.  The Industrial Code was, before OSHA, a primary source of protection for New York workers.  OSHA was enacted with a “savings clause,” and does not wholly pre-empt the Industrial Code.  Since the advent of OSHA, however, updates and amendments to the Industrial Code have been infrequent.  The NYS Department of Labor continues to carry out safety-related inspection and enforcement activities, but — except in the domain of State and municipal employment — generally the NYSDOL’s efforts in this area are modest, and confined largely to specialized issues, crane safety being one noteworthy example.

Workers’ Compensation, of course, was an early-20th century reform.  Its primary features are that virtually all employers are mandated to maintain workers’ comp coverage, and it provides relatively speedy   (albeit limited) compensation, on a “no fault” basis, to injured employees.

Personal injury lawsuits in which injured construction workers are plaintiffs are generally based on common-law negligence, and one or more of Sections 200, 240, and/or 241(6) of the Labor Law.  Section 200 is essentially a codification of common-law principles, requiring places of employment to be “so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places.”  It provides further that “all machinery, equipment, and devices . . . be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons.”

  Labor Law § 240 is the notorious “Scaffold Law,” making both contractors and premises owners (excepting owners of one- and two-family dwellings who not direct or control the work) liable for injuries resulting from gravity-related occurrences, due to any failure to provide scaffolding, ladders and other safety devices.  Insurers, and those who pay their premiums, abhor this statute, because the injured plaintiff’s “comparative negligence” will not be considered by the jury, except if it was the “sole proximate cause” of the injury-producing occurrence.

Labor Law § 241(6) requires all areas in which construction, excavation or demolition work is being performed to be “constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.”

The primary present-day importance of the Industrial Code is that, under Labor Law § 241(6), the touchstone of liability is that the defendant have violated one of its specific, “concrete” provisions, i.e., one not merely related to general safety standards.

One does see OSHA violations alleged in personal injury lawsuits, both as violations of Labor Law § 241(6), and as independent causes of action.  Such allegations are routinely rejected.  OSHA violations may come into evidence as indicative of negligence, but the fact that conduct violating OSHA caused, or contributed to, the plaintiff’s injuries does not establish negligence per se (even if the violation was cited by OSHA, and the citation was not contested, or was upheld).  There is no private right of action under OSHA.  An employee aggrieved by his employer’s violation of any OSHA standard is to report the violation to OSHA’s area office, which should trigger an inspection.

A major difference between OSHA and New York statutory and common-law liability is that OSHA focuses on the employment relationship, whereas liability under the Labor Law extends to injuries to “persons lawfully frequenting” the workplace.  Also, the owner of a construction site (other than the owner of a one or two-family dwelling who contracts for, but does not direct or control the work) may be liable for damages sustained by an injured worker, if it had the right to control the conduct of the injury-producing work, or actual or constructive notice of the dangerous condition at issue.  Under OSHA, generally the owner will not be liable, at least if it did not have its own employees who caused, or were exposed to, the hazard.

Overall, as one New York judge observed, “the system used by OSHA to promote safety consists of inspections of worksites and citations and penalties conferred upon the employer,” but “New York law relies upon the threat of private lawsuit for damages brought by the injured workman to motivate the owner or contractor.

While OSHA violations, therefore, have but limited relevance to personal injury actions brought by injured construction employees, an employer’s conscientious compliance with OSHA’S construction standards will minimize, although it cannot totally eliminate, the prospect of injuries serious enough to result in a lawsuit.

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