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A call to safeguard Scaffold Law

A nonprofit safety group’s call to safeguard the state’s Scaffold Law has renewed debate over a long-standing source of tension between unions and builders.

The Western New York Council on Occupational Safety and Health, or WNYCOSH, an advocacy group, released a report Monday contending that the law remained essential to protect construction workers, citing what the group called shortcomings in federal safety inspections and fines for violations found on work sites.

But groups such as the New York State Builders Association say the law needs changing, describing it as an excessive burden on builders that drives up the cost of doing business.

WNYCOSH said that it chose to put a spotlight on the construction industry through the report, given the many projects underway locally. The safety panel also says the construction and insurance industries are pushing to “severely weaken” the Scaffold Law.

The law covers gravity-related accidents at worksites. Defenders contend that it holds employers accountable for when they fail to provide safety protections for workers who are injured or killed on the job. Critics say the law holds employers liable even in cases when workers act in a negligent manner.

The safety group recommended maintaining the Scaffold Law based in part on its review of federal Occupational Safety and Health Administration construction inspections. The group looked at 2014 data for the Buffalo Area Office, which covers a 10-county area.

OSHA lacks enough inspectors to do its job effectively, and the penalties don’t have enough impact on employers, said Liz Smith-Rossiter, WNYCOSH Worker Center project director. But the report was “by no means an attack on OSHA,” she said. “OSHA’s budget is not big enough, and it’s constantly under attack by Congress,” Smith-Rossiter said. The group recommended that Congress allocate more funds for OSHA to hire inspectors.

Lewis Dubuque, executive vice president of the New York State Builders Association, said that hiring inspectors was a federal budget issue and that the group’s members were not concerned that more inspectors would lead to more violations and fines. “They’re concerned about the safety of the people working for them,” he said.

WNYCOSH calculated an average penalty of $1,963 per construction employer inspection in which OSHA found at least one violation in 2014. The nonprofit group called the average amount “too little to effectively deter construction employers from taking safety shortcuts that endanger their workers.”

An OSHA inspector conducted an average of only one construction inspection per weekday in the 10-county area during 2014, WNYCOSH said. The statistics did not include OSHA inspections of other industry work sites.

The safety group said that the OSHA inspectors found a violation in 83 percent of their construction inspections and that 82 percent of the violations were classified as “serious.” In many cases, fines announced by OSHA were reduced after a company contested its violations and had informal talks with the agency. WNYCOSH said that such reductions occurred in 165 of the 239 construction inspections in 2014 that resulted in at least one violation.

Asked to comment on the safety group’s report, OSHA spokesman Edmund Fitzgerald said the agency takes a variety of steps to protect worker safety. “OSHA recognizes that construction is a high-hazard industry,” he said. “OSHA dedicates a large portion of its resources to addressing this industry.” The agency uses a combination of outreach to educate employers and workers,he said, as well as programs to “identify and target the most hazardous sites.”

Congress gave OSHA permission to raise its maximum fines by more than 80 percent, which takes effect in August. The fines have not increased since 1990. The maximum for “serious” violations will climb to $12,700, from $7,000.

Even with those impending increases, WNYCOSH recommended even higher maximum penalties, contending that they will remain “far below the levels needed to effectively incentivize employers to maintain safe work sites.”

Smith-Rossiter said higher fines are not enough on their own because the penalties can be “factored into the cost of doing business” by employers. She said that maintaining the Scaffold Law and criminal prosecution of employers in cases where workers are killed due to willful and repeat safety violations are also necessary.

Dubuque said the builders group feels that OSHA’s maximum penalties are high enough.

The Scaffold Law remains in dispute. Dubuque said that, as written, the law has made it increasingly difficult for builders to obtain general liability insurance in the state. That, in turn, makes it harder for those businesses to afford to hire people, he said.