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What Safety Rules Apply on Construction sites: OSHA or NYS Industrial Code Rule 23?

Posted on March 12, 2019 by Kelly Wolford
construction on a roof

The answer is that both set of rules apply. But, to understand how this affects safety practices on a New York construction site requires some basic information on just what the Industrial Code rules are. Long before OSHA became law, New York gave its Industrial Commissioner the power to create rules to promote safety practices on construction sites. These rules covered a wide range of construction topics, such as necessary requirements for work performed in trenches, demolition work, protection against electrical hazards, work performed from ladders and scaffolds, roofing work, hoisting workers and materials.  The rules also include protection from general hazards on construction sites such as falls and drowning hazards and the need for personal protective equipment such as gloves, goggles and hard hats. In 1969, the New York State Legislature passed the current version of Labor Law section 241. This statute made all owners of property where construction, excavation or demolition work was being performed, as well as the contractors they hired, individually responsible to provide construction workers with a safe place to work. The Industrial Commissioner was given the authority to enact the rules to further define what safety practices are necessary in order to provide a safe construction work site. These rules are now listed in 12 New York Code Rules and Regulations– Part, 23, also cited as 12 NYCRR 23.

In the late 1960’s, the Federal Government began to investigate how to reduce work place accidents. Their goal was to enact a set rules that would cover not just construction work but all forms of work. However, this discussion will limit its scope only to building construction work. Because New York already had many years of experience dealing with safety practices in the construction field, the US Labor Department, in part, relied upon The Industrial Code Rule 23 when formulating its Construction Industry Standards 29 CFR 1926/1910. OSHA Standards became law in New York State in 1975.

Generally, when the federal government passes a new law which covers the same topic as similar state laws, the federal laws will apply over conflicting state laws. OSHA has been declared to be a set of rules that only allow for the government to monetarily fine employers who do not comply, but, OSHA rules do not give workers any right to recover money damages for injuries caused by an OSHA rule violation. On the other hand, Labor Law section 241(6) is a New York State law which allows injured workers to hold all contractors, owners and their agents responsible in money damages for all losses sustained by an injury worker. Therefore, both OSHA and Industrial Code Rules both apply to construction work but the consequences for violating them are very different.

Importantly, just because OSHA rules are followed on a construction site may not be good enough.  The NYS Industrial Code Rules cannot be ignored. There are many New York Code rules which require different safety standards than what OSHA calls for. Often the New York rules are stricter than their OSHA counterpart. For example, OSHA 1926. 602(b)(4) requires that when a dump truck with an obstructed rear view is being backed-up the employer has a choice of either having an alarm audible above the surrounding noise level or the vehicle is backed up, when an observer signals it is safe to do so.  Studies have shown that workers who are repeatedly exposed to these back-up alarms will begin to “tune them out” as nothing more than background noise. Also, it is difficult for the human ear to identify exactly from where the alarm is coming. In New York, there is no option to use a spotter or an alarm. Rule 12 NYCRR 23-9.7(d) requires that the truck must be guided by a person who can see both the driver and the space in back of the truck.

A few years ago, I had a case where a pipe fitter was working on the construction of a new high-tech factory. The main floor consisted of 2’ X 2’ tiles, some of which could be removed in order to access a crawl space under the main floor where all the supply lines needed to run the manufacturing equipment was to be located. My client was working in an area where two floor tiles were removed some 8 feet apart. He accidently stepped into the open hole when he became distracted by a coworker who approached him with a question. Under OSHA 1910.23(a) these openings are to be protected by either a spotter who will warn others from approaching the opening in the floor or a rigid barricade fixed around the opening. Initially the defendant contractor did use a rigid barricade but found that on occasion they caused damage to the floor tiles so they discontinued its use and relied upon a spotter as OSHA permits. I argued that New York State Industrial Code Rule 23-1.7(b)(1), which states, “every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule)” applied to this case. The contractor attempted to defend their position by arguing that OSHA applied and that under the circumstances they provided adequate protection to the worker. The judge did not agree with defendant, finding that while OSHA did apply so did 12 NYCRR 23-1.7(b)(1).   Since there was no rigid barricade used, the NYS rule was violated and served as a basis for the injured worker to recover money damages against the contractor as well as the owner of the property.

If you or a loved one has been injured on a New York construction site, do not hesitate – contact the experienced personal injury attorneys at Powers & Santola today.