The following Viewpoint is written by Charles “Chip” Pierce, a member of Rosenberg & Estis PC
I have spent my career advising homeowners, developers and contractors throughout New York. During that time, I’ve seen projects stall, deals fall through, and companies struggle for all kinds of reasons. But nothing distorts the way construction works in this state like the Scaffolding Act.
Enacted in 1885 as New York Labor Law § 240, it was designed to protect workers at a time when construction was far more dangerous and far less regulated than it is today. That purpose still matters, but the way the law works today bears little resemblance to the world it was written for.
The Scaffolding Act imposes absolute liability on owners and contractors for gravity-related injuries, regardless of fault. If a worker falls, liability is essentially predetermined. It doesn’t matter what safety measures were in place, if the worker ignored them, or even if the owner or contractor did something wrong.
New York is the only state in the nation where this is the case. All other states apply a comparative negligence standard, where liability is shared based on the events leading up to the accident. HR 3548, the Infrastructure Expansion Act, currently under consideration in Congress, could introduce this same standard to certain federally connected projects in New York.
New York’s current law continues to negatively impact the market in ways that are increasingly difficult to ignore. Not long ago, I worked with a family-run roofing contractor that had been in business for over 30 years. After a fatal accident, there was no finding of negligence, but because of the Scaffolding Act, that didn’t matter. The contractor’s insurance company refused to renew the insurance, replacement coverage was unavailable or unaffordable, and as soon as the insurance policy expired, the company closed its doors, costing dozens of workers their jobs.
Insurance companies have been quietly pulling out of the New York market for years. Premiums have risen, coverage has tightened, and homeowners are being forced to layer policies in ways that would be unthinkable elsewhere. Even the nonadmitted excess insurance companies allowed by the state to cover the gap are limited, and their policies often contain problematic endorsements, limiting coverage in ways that sometimes make it worthless, such as excluding injuries caused by falls from a height. Perhaps most troubling, the pool of qualified contractors is shrinking because fewer companies can meet the insurance or cost thresholds required to bid on projects.
At the same time, New York is asking industry to build more housing, more infrastructure, and to do it faster. These goals are fundamentally at odds with a liability regime that increases costs and limits participation at all levels of the construction process.
The state has set a goal of creating 800,000 new homes over the next decade, but construction in New York is already expensive, and insurance tied to the Scaffolding Act is a big part of that. These costs are built into every project, and for affordable housing where margins are already thin, it can be the difference between a project moving forward or falling apart.
The Infrastructure Expansion Act (HR 3548) is not a solution. It only applies to projects that are federally funded, that receive federal tax incentives, or that require a federal permit. But it offers a way to start changing the conversation. Moving to a comparative negligence standard, even in a limited context, would take some pressure off the insurance side, make it easier for more contractors to participate, and introduce a level of predictability that has been missing for a long time. Even on a smaller scale, this kind of change could show what a more balanced system would look like and what it could mean for housing if it were implemented more widely.
ENR recently looked at another part of this ecosystem: how personal injury litigation related to construction accidents has intersected with judgment loans, particularly in cases involving immigrant workers. This report highlights how the Scaffolding Act shapes behavior and outcomes far beyond the workplace.
None of this means that worker protections should be weakened. Construction is inherently dangerous work and safety must remain the priority. But there is a difference between protecting workers and removing any consideration of blame.
For years, efforts to reform the Scaffolding Act in Albany have failed. Politics is entrenched and meaningful change at the state level has proven difficult. That’s why attention has shifted to Washington and the Infrastructure Expansion Act (HR 3548), which would effectively repeal the state’s absolute liability framework for qualified projects and help rebalance risk, relieve pressure on the insurance market and expand the field of contractors able to participate in public works.
A coalition of nearly 50 organizations, including the Associated General Contractors of New York State, the Building Trades Employers Association, the Real Estate Board of New York and the Association for the City of New York, has rallied behind the bill, with an industry group calling it “a lifeline” for contractors struggling under the weight of insurance costs and leaving fewer able to operate and less.
What is often lost in the wider debate is the cumulative effect of these pressures. When contractors exit the market, projects become more expensive, fewer are built, and the consequences are felt not only by developers and contractors, but also by workers and communities.
The Scaffold Law is not widely understood outside New York, but its impact is felt every day within it. It affects who can build, what gets built, and how much it costs to build. From where I sit, advising clients who are navigating these real-time realities, the question is no longer whether the system is under strain, but how long we are willing to operate under a framework that no longer fits the industry it governs.
Worker protection and shared responsibility are not competing ideas, and in all other states they coexist. New York’s refusal to reconcile the two is a political choice, and one that is affecting the state’s economy and housing affordability.
Charles “Chip” Pierce joined Rosenberg & Estis, PC is the head of the firm’s construction department. Pierce is a member of the Construction Lawyers Society of America and recognized as a Metro New York Super Lawyer in the area of construction litigation. He is also a member of the Diversity Law Institute and the Trial Law Institute. He is a trained mediator and frequent lecturer at CLSA, the Practicing Law Institute and Lorman Education Services on construction law topics.
