By: Thomas H. Welby Published: January 2016

Don't Overlook New York's Industrial Code as an Additional Source of Safety Requirements for Construction

Construction standards under the Occupational Safety and Health Act are the primary source of safety rules that must be observed in construction (and demolition and excavation) operations.  In New York, New Jersey, and Connecticut, federal OSHA governs substantially the entire non-governmental workforce (except for employees covered under other federal safety laws, as govern certain mining and railroad employment, among others).

Many other states have “Little OSHAs,” with enforcement administered by state OSH agencies, using rules that are usually identical to, but must be at least as protective as, those under the federal OSH Act.

OSHA regulations, as I suspect you are already aware, are enforced around the tri-state area by federal inspectors, and violations can result in citations and monetary penalties.  (Apropos of monetary penalties, see the “Alert” at the end of this article).  In addition to OSHA, you are probably aware of Labor Law § 200, which codifies the common-law duty placed on owners and contractors to provide employees with a safe place to work.

You are no doubt aware, also, of Labor Law § 240(1) (the notorious “Scaffold Law”) which, in addition to providing workers with protection against most gravity-related injuries (i.e., those resulting from falling workers, and objects falling onto workers) essentially carves out gravity-related injuries from the usual rule in tort cases, by providing that the injured worker’s “comparative negligence” will not be considered by the fact-finder in reduction of damages.

However, there is yet another, rich source of duties imposed by New York State affecting construction, demolition, and excavation:  the relatively little-known Industrial Code.

First promulgated prior to the enactment of OSHA, the Industrial Code contains a multitude of health and safety rules affecting many activities:  handling, storing, and transporting explosives, carnival tents, window-cleaning, aerial acts at the circus, and places of public assembly, to name just a few.

Of particular interest to us is Industrial Code Part 23, applicable to construction, demolition, and excavation operations.  These provisions appear to have been added in 1972, a year after the OSH Act was enacted by Congress.  While we assume that the New York State Department of Labor could carry out inspections and force compliance and impose penalties if it chose to do so, we are not aware of regular, ongoing enforcement activities corresponding to those carried out by OSHA.

However, as with Labor Law §§ 200 and 240(1) mentioned above, there is an alternative, indirect means by which the Industrial Code’s Part 23 standards are enforced.  Namely, Labor Law § 241(6) imposes a non-delegable duty on owners and contractors to provide reasonable and adequate protection and safety to workers.  The cases impose liability for injuries resulting from the failure to comply with relevant Industrial Code provisions — limited, however, to specific, implementing regulations (as distinct from provisions stating only generalized requirements for worker safety).

Industrial Code Part 23 (accessible online) states that the same is directed to dangers associated with:

  • Falls, and falling objects and materials;
  • The operation of vehicles and of construction, demolition and excavation equipment;
  • Fires, explosions and electricity;
  • The use of and contract with dangerous tools, machines and materials;
  • The handling and movement of heavy materials; and
  • Exposure to the elements and to air contaminants.

You or your safety manager should become thoroughly familiar with Part 23 (which is much more concise than the OSHA construction standards).  Following a “Definitions” section, there are roughly two dozen “General Provisions” governing such matters as PPE, drinking water and sanitation, hand tools, lumber and nail fastenings, etc.

There follows a section captioned “Construction Operations,” with sub-parts addressing:

  • Maintenance and housekeeping;
  • Concrete work;
  • Structural steel assembly;
  • Flooring requirements in building construction;
  • The protection of persons in shafts;
  • Falls, and falling objects and materials;
  • Requirements for catch platforms;
  • Painting; and
  • Stairway requirements during building construction.

The “Demolition Operations” section of Part 23 has sub-parts captioned, “General Requirements,” “Special Approval Required,” and “Demolition By Hand.”  The “Excavation Operations” section has, in addition to “General Requirements,” a sub-part heading for “Trench and Area Type Excavations.”

Additional sections of Part 23 address the following topics:

  • Mobile cranes, tower cranes and derricks;
  • Power-operated equipment;
  • Exhaust gases from internal combustion engines; and
  • The use of explosives.

The New York Appellate Division held, in Irwin v. St. Joseph’s Intercommunity Hospital (1997) that the OSH Act has not pre-empted New York State’s requirements for construction safety, set forth in the Industrial Code.

Although the New York DOL certainly does not have enforcement activities comparable to OSHA’s, and the relevant Industrial Code provisions are not radically different from those under the OSH Act, they do have the force of law, and you should know and comply with them.

Important Alert!  OSHA Penalties to Increase Sharply in 2016!

A provision in the Bipartisan Budget Act of 2015 requires OSHA to increase penalties for violations from year to year, to reflect increases in the Consumer Price Index.

As of August 1, 2016, there will be a whopping, one-time increase in OSHA penalties, to catch up with the fact that the penalties (presently, $7,000 maximum for each “Serious” citation item, and $70,000 maximum for “Repeat” or Willful” items) may go up as much as 150% (although OSHA is authorized to implement smaller increases, if it deems that negative economic or social effects would result from the maximum authorized increases).

In 2017 and subsequent years, increases are to be in line with year-over-year increases in the Consumer Price Index.

An unintended consequence of these projected increases is that, as the amounts at stake go up sharply, employers are likely to become more ready to contest violations and penalties.  Although OSHA, which uses the services of a cadre of knowledgeable, salaried attorneys employed by the Solicitor of Labor, has a considerable advantage in contest proceedings (one of which being that its attorneys are not paid at private attorneys’ hourly rates) OSHA could find itself swamped with an increased number of contests that have to be tried, at increased costs to the government.

However, while for years we have stated that most OSHA citations are important chiefly for their long-term impact on your business, from next summer on, the dollar penalties will become appreciably more significant.  Redoubled efforts to comply with OSHA are called for accordingly.

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