New York City recently enacted new construction safety training legislation that established a program to provide equal access to construction site safety training (SST) for workers, in addition to existing federal, state and local requirements. On Oct. 16, 2017, Mayor Bill de Blasio signed Local Law 196, formerly known as New York City's Local Law Int. No. 1447-C, which amended certain provisions of the Administrative Code of the City of New York and the New York City Building Code. New York City, N.Y., Local Law No. 196 Int. No. 1447-C, Preamble and §22-509 (2017) (Local Law 196).

The new legislation was enacted for the purpose of ensuring that construction site workers have equal access to critical safety training at no cost to workers. Local Law 196, at §22-509; §28-112.12; §28-204.1.1. While the legislation will impact construction contractors, site owners, workers and the legal bar alike, companies that generally do not cover the cost of such training (such as those utilizing non-union and day laborers) may be affected to a greater extent.

When fully phased-in by 2019, Local Law 196 will require that workers at certain job sites receive a minimum of 40 hours of safety training and that supervisors at certain job sites receive a minimum of 60 hours of safety training. (New York City Department of Buildings, Local Law 196 of 2017 Construction Safety Training Information Session, p. 2).

New Site Safety Training Requirements

Under Local Law 196, safety training requirements must be completed in three phases:

• By March 1, 2018, all workers on jobsites under 10 stories must have completed at least one Occupational Safety and Health Ten Hour Course (OSHA-10).

• By Dec. 1, 2018, in addition to the OSHA-10 Course, all workers must have attained at least a Limited Site Safety Training Card, which includes a minimum of 30 hours of training. This requirement can be fulfilled by completing an Occupational Safety and Health Thirty Hour Course (OSHA-30) or an additional 20 hours of safety training or a 100-hour training program approved by the Department of Buildings. This deadline may be extended to June 1, 2019 if the Department of Buildings determines that there is insufficient capacity to provide training within the requisite timeframe.

• By May 1, 2019, workers must have a Site Safety Training Card, which indicates that they have been fully trained. In addition to the previous requirements, workers must complete an additional 10 to 25 safety training hours, to meet the required 40 to 55 hours. This deadline maybe extended to a date no later than Sept. 1, 2020 if the Department of Buildings determines that there is insufficient capacity to provide training within the requisite time frame. Id., at pp. 9-12.

Workers that must be trained under the new law are those at job sites that require a Site Safety Plan, including sites that are required to designate a Construction Superintendent, Site Safety Coordinator or Site Safety Manager. Id., at p. 3. Supervisors at these job sites must also be trained, including Site Safety Managers, Site Safety Coordinators, Concrete Safety Managers, Construction Superintendents and Competent Persons. Id. The following individuals are exempt from completion of the new training requirements: delivery persons; flag persons; professional engineers; registered architects; special inspectors; Department of Building licensees (excluding the above-referenced safety professionals); workers at job sites that only involve minor alterations; or workers constructing new one, two or three family homes. Id., at p. 4.

The Department may also by rule establish alternative training requirements for workers who are (1) working on a building that is four stories or less in height or working on a new building that will, upon completion of such work, be four stories or less in height and (2) engaged on a volunteer basis by a not-for-profit humanitarian organization that is registered with the New York state charities bureau. Local Law 196, at §3321.1.

The new training topics include, but are not limited to, the following: fall protection; personal protection equipment (PPE); safely working with machines; hazardous chemicals; proper lifting techniques; confined space awareness; walking and working surfaces; electrical safety; hazard communication; concrete operations; demolition work; excavation work; material handling; material hoisting; sidewalk sheds and fences; steel erection; ladders and stairs; asbestos awareness and lead awareness. Local Law 196, §28-103.28.5.

Implementation and Penalties for Non-Compliance

To direct and monitor the new training requirements, the City of New York established a Construction Safety Task Force (consisting of seven members appointed by the Speaker of the City Council and seven members appointed by the mayor or the mayor's designee), in addition to a chairperson. Local Law 196, §28-103.28.1.1.2. The Task Force includes representation from parts of the construction industry that are represented by labor unions, non-union entities, certified minority-and women-owned business enterprises, and day laborers. Id. The new legislation further allows for the issuance of temporary and limited site safety training cards that permit workers to continue working before fully completing the required training hours at each phase in certain circumstances. Id., at §28-204.1.1.2.2.

Permit holders and other accountable entities face various penalties for failure to comply with the new legislation. In order to obtain or renew a permit for construction or demolition, permit applicants and permit holders are required to certify to the Department of Buildings that all workers who will be working under the permit have the requisite training throughout the duration of said permit. Id., at §28-105.12.9.

For “immediately hazardous violations,” a civil penalty of not less than $1,000, nor more than $25,000 may be imposed for each violation. Id., at §28-202.1(1.). In addition to such civil penalty, a separate additional penalty may be imposed of not more than $1,000 for each day that the violation is not corrected. Id. For “major violations,” a civil penalty of not more than $10,000 may be imposed for each violation. Id., at §28-202.1(2.). In addition to such civil penalty, a separate additional penalty may be imposed of not more than $250 for each month that the violation is not corrected. Id. For “lesser violations,” a civil penalty of not more than $500 may be imposed for each violation. Id., at §28-202.1(3.).

There are certain exceptions to the civil penalties, wherein an owner, lessees, occupant, manager or operator of a building affected by a natural or man-made disaster, as determined by the Commissioner of the Construction Safety Task Force, may not be subjected to civil penalties or may be granted an extension of time to correct violations. Id., at §28-202.1(2.).

A violation with a civil penalty of up to $5,000 per untrained worker will be issued to the owner of the site, the permit holder, and the employer of the untrained worker. (New York City Department of Buildings, Local Law 196 of 2017 Construction Safety Training Information Session, p. 17). Civil penalties may be mitigated if an employer sponsors training at no cost to the untrained worker(s). Id. A violation with a civil penalty of $2,500 will also be issued if a permit holder fails to maintain a log book that demonstrates that all of the workers at a site are trained. Id., at p. 18. The Department of Buildings will also conduct periodic audits, as well as unannounced inspections, at sites where untrained workers have been discovered. Id., at p.18; Local Law 196, §28-103.30. Each such untrained worker shall constitute a separate violation that shall be noticed and charged separately and shall be punishable by a separate civil penalty. Id., §28-104.28.1.1.1.

Local Law 196 incorporated an affirmative defense to the violation, which applies when an owner, permit holder or employer reasonably relies upon documentation that establishes compliance with mandatory training provided by a worker, and that worker is later found to be inadequately trained. Id.

Practical Impact of New Requirements

Permit holders and entities tasked with compliance under Local Law 196 would do well to limit exposure to risk by ensuring that their workers obtain an OSHA-30 card, or are otherwise compliant, by the Dec. 1, 2018 interim compliance date. Superintendents, Site Safety Supervisors, and other designated Competent Persons must also ensure compliance with the Superintendent/Supervisor Training Mandate by Dec. 1, 2018. Certainly, permit holders and entities tasked with compliance should continue to adhere to all requirements by the final compliance date of May 1, 2019, or any date otherwise set forth by the Department of Buildings.

Local Law 196 not only applies to the permit holder's workers, but to sub-contractors' workers as well. Sub-contractors should be prepared to present a log demonstrating proof of workers' required training to construction companies, owners and their agents throughout the duration of a project.

At the Jan. 31, 2017 Hearing before the New York City Council Committee on Housing & Buildings, during testimony concerning the bill, while concerns for worker safety were voiced, criticism was also expressed with respect to the anticipated implementation of new legislation from various stakeholders (including construction companies, workers, owners and other groups). January 31, 2017 Hearing before the New York City Council Committee on Housing & Buildings.

While the Association of Electrical Contractors (AEC) submitted a memorandum indicating that the bill was critically needed, the AEC expressed concerns regarding the bill's implementation, including the manner in which workers on covered projects could prove that they are apprentices/graduates, the number of trained and qualified Department of Buildings Inspectors and the application of safety standards to all job sites, as opposed to only large-scale projects. Id., at pp. 29-30. The Joint Industry Board of the Electrical Industry posited that the bill will ensure that major building sites and demolition sites of four stories or higher will be staffed by experienced, skilled and properly trained workers.” Id., at pp. 61-62.

While applauding the Council's efforts to strengthen safety procedures, Carlo A. Scissura, president and CEO of the New York Building Congress, urged the City Council to consider not only ensuring safety standards, but also continued productivity, as “many of these bills could unintentionally slow construction to prevent critical small businesses from broad participation in the construction market.” Id., at pp. 31-32.

The Real Estate Board of New York, while expressing an interest in construction safety, opposed the bill on the grounds that, inter alia, “mandating apprenticeship programs at virtually every construction site throughout the city and at city-financed projects would stop many projects in their tracks and/or from ever being realized. Otherwise qualified construction workers will be effectively unemployed because they will not be able to meet Intro No. 1147's definition of qualified workers on building projects … MWBE [Minority and Women-Owned Business Enterprises] firms and other smaller contractors might not have the resources to establish or participate in such an apprenticeship program.” Id., at 309.

The Associated Buildings and Contractors and New York State Association for Affordable Housing expressed concerns that the bill would cause non-union workers to lose jobs. Id., at pp. 333-35. The National Day Laborer Organizing Network, while supporting enhanced worker safety, proposed that the implementation be phased and that resources be dedicated to assist traditionally excluded and exploited members of the work force. Id., pp. 47-48. The New York State Chapter the National Association of Minority contractors recommended withholding support until the unintended consequences and potential gap in minority hiring and contracting be studied. Id., at p. 59.

At the Committee on Housing and Buildings vote on Sept. 20, 2017, Chairperson Jamonte Williams indicated that due to capacity constraints, as OSHA only permits 40 people to a classroom, a Department of Buildings equivalent to OSHA training was created, which permits more than 40 attendees. Committee on Housing and Buildings Transcript, Sept. 20, 2017, pp. 7-8. Mr. Williams announced that the City would be committing $5 million to implement the legislation, a large portion of which will be provided to community groups concerned about training costs, as well as $3 to $6 million to the New York City Department of Buildings. Id., at pp. 8-9. Mr. Williams indicated that significant adjustments were made to accommodate MWBEs, day laborers, unions and non-unions. Id., at p. 9.

The legislation may have other unintended consequences, in that it does not specifically define which “workers” would be covered, nor provide criterion as to which training program providers would be approved by the Department of Buildings. Further, while certain individual licensees are exempt from training, it is conceivable that situations may arise where the exempted licensees are effectively supervising more highly trained workers.

Impact on Personal Injury Lawsuits

In the context of personal injury lawsuits, Local Law 196 may be raised by the parties in various contexts. The non-compliance of a permit holder or other responsible entity may be viewed as evidence of negligence at trial. In contrast, in the event that workers act inconsistently with site safety training, application of the new training requirements may support defense attorneys' arguments of comparative negligence and potential worker recalcitrance, depending on the circumstances.

While it may conceivably be argued that a worker's failure to adhere to safety training was the sole proximate cause of alleged injuries, or that a worker was recalcitrant, such arguments may be less persuasive in cases where a violation of Labor Law §240(1) has been alleged, as it is typically more challenging to contest liability under this statute. New York State Labor Law §240(1), often called the “scaffold law,” provides that “[a]ll contractors and owners … shall furnish or erect, or cause to be furnished or erected … scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to [construction workers employed on the premises].” Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494 (1993), citing NY LABOR §240(1). Further, “[i]t is by now well established that the duty imposed by Labor Law §240 (1) is non-delegable and that an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work.” Id., at 502 (citing e.g., Haimes v. New York Tel. Co., 46 N.Y.2d 132, 136-37 (1978).

The new legislation may have a greater impact in certain cases in which Labor Law §241(6) is alleged. Labor Law §241(6) provides that “[a]ll areas in which construction, excavation or demolition work is being performed shall be so 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.” NY LABOR §246(1). In order to sustain a cause of action under Labor Law §241(6), plaintiff must plead and ultimately prove a violation of a specific and concrete regulation of the New York State Industrial Code. Ross v. Curtis-Palmer Hydro-Electric Co., supra. For certain alleged Industrial Code violations, non-compliance with the new training may evince a defendant's failure to appoint a properly trained competent person to oversee allegedly injury-resultant work. A plaintiff's comparative negligence may also be considered under Labor Law §241(6), which may serve to adversely affect workers who fail to properly apply their training.

In sum, the new site safety training requirements under New York City's Local Law 196 are certain to impact construction contractors, owners, workers and the legal bar. Taking proactive steps to ensure compliance with the new legislation and to minimize risk is helpful for workers, permit holders and responsible entities alike.

John V. Barbieri is a partner and Jennifer Loyd is counsel at Litchfield Cavo. They can be reached at [email protected] and [email protected], respectively.