By: Thomas H. Welby Geoffrey S. Pope Published: March 2018

NYC Local Law 81 Expands Requirements and Duties for Construction Superintendents

Job-related fatalities in New York City are not constant from year to year (there were 191 such deaths in 1993, and just 56 in 2013) but, year after year, construction-related injuries and deaths run ahead of transportation deaths as the #1 and #2 causes of workplace mayhem.

Since the inception of OSHA (enacted in 1970) workplace fatalities have been reduced by about 60%, while the American workforce has more than doubled.  Those of you who imagine that an OSHA inspector lurks behind every lamp-post may be shocked to learn, however, that New York, the nation’s fourth most-populous state with more than 19 million inhabitants, was covered by just 66 federal OSHA inspectors statewide in 2015.

Construction-related fatalities in New York City rose from 17 in 2011, to 25 in 2015, and injuries on construction sites rose from 128 in 2011, to 435 in 2015 statewide.  The numbers of OSHA inspections in New York dropped every year from 2011 through 2015, with an overall reduction of 27%. 

While most construction employers take their safety responsibilities seriously, some, regrettably, do not.

One incident from 2015 involved a 28-year-old foreman on a high-rise construction jobsite in Manhattan.  This worker sustained severe injuries when rebar fell on his leg.  His employer sent a supervisor with the injured employee to the hospital, to report to the doctors, falsely, that the injury resulted from an off-site slip, trip, and fall.  The injured worker, a new father, was discharged just days following the incident.

Since anticipated budget cuts appear likely to bring about additional reductions in federal OSHA enforcement, state and local governments, and construction industry employers, are going to have to take up the slack.

Over the past several years, local authorities in New York City, notably the City Council, have taken a number of steps to try to stem the increases in the numbers of deaths and injuries accompanying the post-recession building boom in the City.

One such measure, which took effect in November 2017, is Local Law 81, which expands the role of the construction superintendent, while increasing the range of projects on which a superintendent is legally required.

Prior to the effective date of Local Law 81, a site safety manager was required only during the construction or demolition of “major buildings,” defined as those over ten stories high.  With the advent of Local Law 81, a construction superintendent is now required on buildings having less than ten stories (except one to three-family homes) that meet any of the following criteria:

  • new buildings;
  • demolition of an entire building, or more than 50% of the floor area over a 12-month period;
  • vertical or horizontal enlargement;
  • work requiring special inspections for underpinning;
  • work requiring special inspections for the protection of sides of excavations;
  • other jobs posing risks to the public or to property, as determined by the building commissioner.

Public Law 81 also assigns expanded responsibilities, many of them safety-related, to building superintendents.  Generally, the superintendent is now responsible for the following:

  1. Acting in a reasonable and responsible manner to maintain a safe job site and assure compliance with [the Building Code] and any rules promulgated thereunder at each job site for which the construction superintendent is responsible;
  2. To the extent that a registered design professional or special inspection agency is not responsible, the construction superintendent must assure compliance with the approved documents at each job site, for which the construction superintendent is responsible;
  3. Fulfilling the duties of a superintendent of construction assigned by Chapter 1 of Title 28 of the Administrative Code at each job site for which the construction superintendent is responsible; and
  4. Visiting each job site for which the construction superin­tendent is responsible each day when active work (with limited exceptions) is occurring.

During the construction superintendent’s daily visit, he or she must inspect all areas and floors where construction or demolition work, and ancillary activity, is occurring, and do all of the following:

  1. Verify that work is being conducted in accordance with sound construction/demolition practices;
  2. Verify compliance with the approved documents; and
  3. Verify compliance with Building Code § 3301, and any rules promulgated thereunder.

In addition, the construction superintendent has the following responsibilities under Local Law 81:

  1. Correcting unsafe conditions, giving notice to the person(s) responsible for creating the condition, and taking all appropriate action to ensure the condition is corrected.  The construction superintendent is also responsible to give notice to any design professional or special inspection agency with responsibility for the condition.
  2. The giving of notice to the Department of any conditions listed in Building Code § 3310.8.2.1.
  3. Immediately giving notice of any accidents or damage to adjoining property caused by construction or demolition activities at the job site.
  4. Designating a “competent person” to be present at the job site at all times active work is going on, to carry out the superintendent’s orders; identify unsanitary, hazardous or dangerous conditions; take prompt corrective measures to eliminate such conditions; immediately report to the superintendent accidents and damage to adjoining property; and effectively communicate workplace instructions and safety directions to all workers at the site.
  5. Keeping a log at each job site, each log to contain (at minimum) the date and time of the superintendent’s arrival at and departure from the site for the required visits; the general progress of work (and daily summary of work performed); the construction superin­tendent’s activities at the site, including areas and floors inspected; any unsafe conditions observed, and the date, time, and location the same were observed; orders given in respect of accidents, unsafe conditions, etc., with dates, times, responses, and follow-up actions, if any; violations, stop work orders, or summonses given by the Department; accidents; and the name and signature of any person acting as the “competent person” or successor competent person.

In part because of the complexity of OSHA construction standards, and the limited effectiveness of safety training of the rank-and-file, we have long advocated providing extensive safety training and substantial responsibility for OSHA compliance to superintendents and other field supervisors.  That approach is furthered by the increased responsibility for construction safety assigned to construction superintendents by Local Law 81.

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