Friday, May 2, 2008

Falling Through The Enforcement Gap

While New York construction workers fall to their deaths at an alarming rate, Ontario has the best safety record — and the inspectors to show for it.

By Andrew Garib

New York, May 2 — On November 2, 2006, 25-year-old Ramiro Jara unclipped his harness from his safety line and attempted to cross between two scaffolds, 25 feet apart and 15 stories above busy morning traffic, suspended from the roof of the building he was working on.

Click image for a detailed chart comparing construction safety regulations in Toronto and New York City.He never made it. Jara slipped off the building’s ledge at the Union Square construction site and fell to his death. He landed on a platform one story above the ground, steps away from Fifth Avenue.

The New York City Department of Buildings called Jara’s death an accident, but in the same breath announced an array of safety regulations that Jara’s employer had violated at the site. The builder did not have a license for the rigging the scaffolding hung from, a licensed rigger or a designated foreman on site, nor paperwork showing that workers had been trained for the rigs.

Jara’s death was not unique in New York. Just this January, Brooklyn’s Yurly Vanchytsky, 53, was decapitated after falling 42 stories from the top of the nearly complete Trump Soho tower on Spring St., where he was pouring concrete. Two weeks later, Queens resident Jose Palacios fell 12 stories to his death after his scaffolding collapsed in Clinton Hill, Brooklyn. And on April 15th, Kevin Kelly, 25, of Queens, died after falling nine floors when his safety strap failed while installing windows on a high rise condominium on the East Side. All three job sites were riddled with safety violations. “Safety is not a priority for the Buildings Department,” said Representative Carolyn B. Maloney of New York’s 14th district, which includes the site of Kelly’s death.

The public cried out for changes, and the city reacted haphazardly. In March, a city inspector was jailed for his negligent role in a crane collapse that killed seven people amidst reports of corruption from the city’s press. But critics like Manhattan Borough President Scott M. Stringer still slammed the department, saying it “doesn’t get it.” The City sustained enough pressure to force out Buildings Commissioner Patricia J. Lancaster, a former engineer who herself called for more regulation. In the mean time, construction deaths steadily rose, from 19 in 2003, to 38 — 24 involving falls — in 2006.

In New York City’s still growing building market, falls account for more than half of all construction fatalities. But a non-scientific investigation of construction falling deaths in booming major cities across the country shows that New York is not alone. And while city officials have received enormous pressure to improve safety laws, a detailed comparison between New York City and a jurisdiction which boasts the best construction safety record on the continent shows that the difference may be in how the law is enforced. The Canadian Province of Ontario, whose capital, Toronto, is one of the largest and fastest growing cities in North America, has half as many occupational safety and health inspectors as the entire United States, or nine times as many inspectors per construction worker. Ontario also has tougher penalties, while Toronto has nearly 50 per cent fewer falling deaths than the Big Apple.

A National Problem

Michael Donovan is more concerned than most about construction safety in New York City. “Walking down the street, I cringe when I see scaffoldings at the tops of 40-story buildings,” the Manhattan-based Certified Industrial Hygienist said. “If I see grappling hooks over parapet walls, I wonder, how much did they check? Did they have a professional engineer sign off on it? Bricks break loose, or cinder blocks, and there you go.” Donovan has 20 years of experience in worker safety issues, including those involving the cleanup at the World Trade Center after the attacks of September 11, 2001.

Construction is the most dangerous industry for workers in America, and falls account for more than a third of all construction deaths. At the national level, the Occupational Safety and Health Administration has overseen stringent and respected safety standards for fall protection since 1979.

“There are very good fall regulations, especially on scaffolding,” Donovan said. The problem, he said, was their enforcement. “OSHA is so thin in terms of manpower, they react instead of act. They react well, but I don’t know if they can really enforce” the regulations.

“OSHA’s New York regional office has a strong inspection schedule to reduce injuries and fatalities in the local construction industry, as well as an ongoing aggressive campaign to educate employers and employees about the vital importance of promoting prevention through training,” George Chartier, OSHA spokesperson, said in an e-mail.

Administration fall protection regulations apply to any workspaces where there is a risk of falling 6’ or more. The administration requires one or a combination of three systems to protect workers: Guardrails to prevent falls, safety nets to prevent serious injury or death due to falls, and personal fall arrest or fall restriction devices, which are straps, cables and anchoring attached to the worker’s harness. (See full chart.) The regulations are incredibly thorough, with over 60 pages detailing the required height of guardrails (39-45”) and their proper installation, the maximum width of safety net webbing (6”) and even the materials they can be made from (steel cable or nylon). The administration also has strict and detailed regulations regarding the design, erection, use and dismantling of scaffolding, and the fall protection systems required on scaffolding and other aerial moving platforms, such as cherry pickers.

The administration can levy fines of up to $7000 for hazards that pose or cause a threat to worker safety, and up to $70,000 for the worst offenses, called “willful” violations, where the builder knows about but recklessly disregards dangers. “If you have a willful citation issue in connection with a fatality or a hazard directly related, Labor Department attorneys would discuss the matter with a US attorney’s office,” said Ted Fitzgerald, the department’s press officer for Region 2, which includes New York. “OSHA can’t bring up litigation ourselves.” Fitzgerald said criminal prosecutions and jail time are very rare, and was unable to provide national or regional enforcement statistics by the time of publication.

Occupational safety and health specialist Tony Straka agreed that while federal and some city regulations were good, enforcement was lacking. Straka works for the New York Committee on Occupational Safety and Health, a labor-based non-profit coalition advocating for workplace safety, and has testified on their behalf before state and city hearings regarding construction safety. Straka said the number of OSHA inspectors nation-wide was alarmingly low, down from 1082 in 2003 to 818 in 2007 — slightly less than one for every 8,000 construction workers in the country.

“The staffing of the Occupational Safety and Health Administration continues to be well below what it should be to ensure safe and healthy conditions in the workplace,” Straka said before an emergency meeting of the New York City Council Committee on Housing and Buildings on February 4. “Despite OSHA’s emphasis on construction hazards, and its best efforts to perform its mission to the best of its ability, it is clear its ability to enforce its regulations is limited by its limited staff.” The same, he said, goes for Buildings, which in 2007 had approximately 75 inspectors responsible for enforcing the entire building code, up from about 50 in 2006.

(Straka and others, such as administration Manhattan-area director Richard Mendelson and Building Trades Employers Association President Louis Colletti, also cite immigration status and language barriers as major factors in construction injuries and deaths.)

With the federal administration’s low inspector count, construction safety becomes a national problem. Taking a look across the country in four major cities with building booms between 2003 and 2006, for when the most recent data was available, it is clear that New York’s problem of falling hardhats is not unique to the five boroughs.

Dallas/Ft. Worth, which was one of the fastest growing metropolitan areas in the nation according to the Census Bureau and was in the midst of a building boom at the same time as New York’s, recorded an average of under 7 falling deaths per year between 2003 and 2006 according to the Bureau of Labor Statistics. (See full chart.) New York City had an average more than twice that, on par with Chicagoland. The average number of fatal construction falls in New York per capita was 63% above Dallas/Ft. Worth’s, and a third higher than the national rate. Worst offender Metro Miami was more than twice the national average.

In Dallas/Ft. Worth, the safest metro area for construction falls in this unscientific study, OSHA was the only law protecting against falls in construction. But in New York, a labyrinth of regulations hasn’t slowed the death rate.

New York’s Regulations Tangle

Lawyer Nicholas Wise knows New York’s construction safety laws as well as anyone. He has worked at the personal injury firm Weitz & Luxenberg for more than a decade, and has won millions of dollars for his clients. A recent case involved a construction worker working at “a fancy new hotel” in the Meatpacking District in Manhattan. The construction company sent the worker to the roof of a building which was being stripped and incorporated into the new hotel, where he was to pick away at the roof made of old asbestos. The worker was provided a safety line that was insufficient for the work and the risk involved.

“Lo and behold, he’s chopping through the roof on which he’s standing, goes through the roof, down to the next floor, and lands with legs on either side, his crotch on an I-beam,” Wise said. The worker fractured part of his spine, sued his employer and won. “If they’d given him a proper line, he would have fallen two or three feet, and he would have been fine. You have to give people the right equipment.”

To win the case, Wise used a little-known provision of New York State Labor Law called Section 240(1), which requires construction companies to provide their workers with proper safety equipment when working at a height. “It is a very helpful law, and as a result of it, owners and general contractors go to much greater lengths to make sure they do have those protections,” Wise said.

Another part of the Labor Law, Section 241(6), refers to yet another set of construction safety laws: the New York Industrial code. “You can base a cause of action on that, but you have to show a violation of the industrial code,” Wise said. “The ironic part of that is, no one really looks to the industrial code. They look to OSHA, because they haven’t amended [the code] or changed it since the mid-70s. But you can’t predicate a liability case just on OSHA.”

Thus a key part of New York’s web of construction safety laws is allowing injured workers or the families of killed workers to sue in civil courts. But Wise said that the Labor Laws like Section 240(1) have been weakened by the judicial system. “What has been happening in the past five to eight years, is the courts have been eviscerating the protection, they’ve been narrowing when it applies,” he said. “It used to give [workers] full protection.” New York is the only jurisdiction in America with such laws on the books.

Buildings also has safety regulations built into the city’s building’s code, which is unique to New York among the cities studied for this story. The most recent additions to these laws were prompted by deaths in the industry, particularly scaffolding accidents. When Ramiro Jara died in November 2006, the city created an emergency task force that consulted with city officials, representatives of labor and building companies, and members of the occupational safety policy community, including Tony Straka. The Scaffolding Workers Safety Task Force provided the city with thirteen recommendations, all of which were implemented in some form into city law. The so-called Scaffolding Laws now require companies to have a license in order to use a suspended scaffold, as well as to notify the city when scaffolds will be erected, used and dismantled. This is on top of earlier scaffolding regulations in the building code from 2005, which provided similar but more stringent regulations than OSHA’s rules.

Despite these changes, the falls continued, and pressure on the city mounted. The latest spate of construction falls, particularly the death of Yurly Vanchytsky in January, prompted calls for new regulations on concrete work. Vanchytsky died when the wooden molds holding the concrete he was pouring collapsed, sending him plunging to his death.

The alarm at City Hall was palpable. “The construction industry in general, and concrete operations in particular, need more regulation,” former Commissioner Lancaster said in her prepared remarks at the February 4 emergency meeting, where she recommended new licensing and safety requirements for general and concrete contractors.. “The impetus here is the absence of an accountability scheme amongst the contractors on a job site,” department spokesperson Carly Sullivan said.

Still, other politicians said the recommendations were not enough. In an e-mail, 2nd District Councilwoman Rosie Mendez called the new regulations a good start, but “the proposals are too narrowly focused, and they need to be expanded to include preventative measures for the wide range of construction accidents we’ve seen across the city,” she said.

The city had its most vocal criticism from Manhattan Borough President Scott M. Stringer, who called for an overhaul of the department. Stringer said that Buildings had “lost the confidence” of his constituents, and needed to cede some of its investigatory powers to other city agencies.

Closing his speech before the February 4 meeting, Straka said that stiffer penalties would make the industry safer. “If an employer knew there was a substantial likelihood of being criminally prosecuted — and going to jail — for taking shortcuts with other people’s lives, it would be certain to get his attention and would be certain to greatly reduce the number of construction accidents and fatalities in New York City,” he said.

But while politicians and lawyers disagree on the causes of New York’s high rise construction safety crisis, construction safety experts insist that the problem, at least in part, is one of enforcement. “I think the point is that they’re the stretched so thin,” Donovan said of Buildings.

Looking to Ontario

Carlos Figueira has worked in the Ontario construction industry since he was 17. After thirty-three years of construction labor and consulting, he now runs special programs for the Construction Safety Association of Ontario, a respected industry-based non-profit promoting worker safety that claims Ontario has “the best construction safety record in North America, possibly the best in the world.”

Ontario’s capital, Toronto, has had as big a boom in the construction industry as any city on the continent, yet has had fewer construction deaths than any of the cities profiled in this story between 2003 and 2006. Toronto’s construction safety regulations are governed by the province (a more powerful equivalent of a state government). “Ontario has been known to have probably the most stringent regulations compared to other jurisdictions within Canada,” Figueira said, which “often look to Ontario.”

Ontario’s Occupational Health and Safety Act of 1978 covers regulations that are broadly equivalent to those in OSHA, with few exceptions. (See full chart.) Ontario’s regulations are as thorough and detailed, if not as long and meticulous. (Ontario’s law fits on eight pages.) Fall protection legislation comes into effect at 3 m (10’) but can require measures for heights as low as 1.2m (4’). Unlike US regulations, guardrails are required first and foremost, but if they cannot be provided for practical or safety reasons, the worker must have a restraint, fall arrest, or safety net system in place. These systems must meet exacting specifications provided by the Canadian Standards Association, an independent industry standards association, as well as those explicitly listed in the legislation itself. In 2001, the Ontario government added a requirement to adequately train workers in fall protection systems.

On top of the regulations, the Ontario Ministry of Labour requires all contractors to register with the Workplace Safety Insurance Board, a public insurer and occupational safety training and education agency under the aegis of the ministry.

Penalties for non-compliance are harsh. Corporations can be responsible for fines of up to C$500,000 (about the same in US dollars), and individuals can incur fines up to C$50,000 and, unlike in American regulations, twelve months of jail time. The ministry publishes all recent fines above C$5000 for individuals and $50,000 for corporations, and has 90 listed on its website for 2007. In April, a steel company received C$400,000 in fines.

One builder, Ion Cenuser, was sentenced to seven days in jail and fined $3000 under OHSA for pushing a ministry inspector. A March Law Times News article said “the ministry is pressing hard for jail time in regulatory matters.” Bruce Skeaff, spokesperson from the ministry, said jailings remain “extremely rare,” Cenuser’s case being the only one he can recall in his years with the ministry. “Supervisors have been given jail time because of clear negligence,” Figueira said. “They definitely neglected their responsibilities.”

Importantly, unlike OSHA, Ontario’s regulations have a built-in mechanism for allowing civil cases for negligence under the occupational safety law, a measure that fills the gap left by a narrowing Section 240(1) in New York’s jurisprudence. Finally, a federal law allows criminal prosecution of builders found extremely negligent in the injury or death of their workers. Bill C-45 came into effect in 2004, and found its first conviction in the Province of Quebec in December 2007, where a worker was crushed to death in 2005 and his employer was charged under the law.

The Enforcement Gap

Figueira said that the key to Ontario’s worker safety success has been a responsive legislature and proper enforcement and inspection. “If we continue to have accidents in a certain area because of a certain task they’re doing, they’ll implement legislation,” he said of the provincial government. “For example, fall protection [regulations were] not as stringent as it was six years ago, back in 2002. They made amendments to the act requiring certain things, including mandatory training.” Figueira said that Ontario added 200 inspectors in 2005, which the ministry confirmed.

While the number of Ontario construction deaths and fall fatalities have declined during the building boom in Toronto and other Ontario cities, American numbers have grown slightly, and New York’s have grown drastically. And while the US Department of Labor has not been able to produce the number of its occupational safety inspectors in New York, the national numbers alone are telling: OSHA had a total of 818 inspectors in 2007 nation-wide for an industry with 6.7 million workers according to the Census Bureau. Ontario — with a tiny fraction of the population and only 405,000 construction workers – had more than half that number, 430. The Department of Buildings had its inspectors, too, but they are responsible for enforcing the entire building code, of which only a small part is concerned with safety.

Michael Donovan said he’s “not surprised” at the disparity of inspectors: the results speak for themselves.

Neither OSHA nor the US Department of Labor provided a comment in time for the publication of this article.

When asked if his province’s regulations were enough to protect workers, Carlos Figueira said yes, for the moment. “Things were changing, practices were changing, and you have different people coming in,” he said, and government needs to respond. “But legislation comes upon actions.”

In New York, Tony Straka still says enforcement needs to improve. “The overall number of available inspectors is very small,” he said. “We live in a time of smaller government, at least in terms of resources available for domestic problems.”

Meanwhile in New York, safety regulations go unenforced, and workers keep falling and dying.

Mississauga, Ont.-born Andrew Garib is a journalism graduate student at New York University. He graduated from Cornell University in 2006, where he studied philosophy and government and edited the campus’s leading political newspaper, the progressive Turn Left. Andrew interned at the Center for American Progress’s youth outreach arm in 2005, and regularly contributed to its on-line publication, Andrew interns for METRO New York, and hopes to one day work as a political reporter.

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