Vol 18, No. 5 (518) 869-9800 November 1999
Inside this edition: OSHA's Albany Office Targets Lead Exposure * Presidents Message *Legal: Height-Related Injury Not Protected By NY Scaffold Law * New Members * Prevailing Wage Bill Vetoed * Governor Prevailing Wage Bill Signed * ESSA Workers' Comp. Safety Group *
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OSHA'S ALBANY OFFICE TARGETS LEAD EXPOSURE
(Go Top)
OSHA's Albany Area Office has announced the
adoption of a new "strategic initiative" which will be
implemented during the next three years and which will target,
among other things, lead hazards in the construction industry.
Albany Area Director John Tomich states that lead exposures will
be a "major focus" for his compliance officers, with
the goal of reducing illnesses due to lead exposures by 15% by
2002. OSHA will be targeting bridge and elevated highway work,
painting and paperhanging, structural steel erection and wrecking
and demolition activities. The tasks compliance officers will
focus on will include paint removal, remodeling, welding and lead
abatement. The strategic initiative will move forward over four
phases, and will include employer outreach and education along
with traditional enforcement measures. OSHA will also use SIC
codes to identify companies more likely to be involved in lead
exposures.
The OSHA lead standard was published as a final rule in 1993, and
governs occupational exposure to lead in the construction
industry. It limits worker exposures to 50 micrograms of lead per
cubic meter of air averaged over an eight-hour day. In the
construction industry, traditionally most over-exposures to lead
have been found in trades such as plumbing, welding and painting.
Lead exposure is most common among project types that involve the
disturbance of lead or lead-containing materials during
additions, alterations, reconstruction, demolition and repairs.
Some examples of potential sources of exposure in these project
types include lead-based paint and paint dust, lead pipes, leaded
solder and leaded support rods in stained glass windows.
Employers with workers who may be exposed to lead are responsible
for the development and implementation of a worker protection
program which minimizes employee exposure through the use of
engineering controls and good work practices. Also, respirators
must be used during periods when an employee's exposure exceeds
the permissible exposure limit (PEL); when work operations for
which engineering and work practice controls are not sufficient
to reduce employee exposures to or below the PEL; and, when an
employee requests a respirator.
At a minimum, the following elements must be included in the
employer's worker protection program:
Hazard determination including exposure assessment
Engineering and work practice controls
Respiratory protection
Protective clothing and equipment
Housekeeping
Hygiene facilities and practices
Medical surveillance and provisions for medical removal
Training
Signs
Recordkeeping
In addition, OSHA requires that the employer designate a
competent person to implement the program and monitor compliance.
Members who would like a copy of OSHA's lead standard should
contact the NESCA office.
On October 14th, NESCA held its 19th Annual
Trade Show at the Century House in Latham. To those of you who
did not attend this year, you really missed a fantastic Trade
Show! I enthusiastically congratulate Chairman Randy Parent and
his committee for organizing such a well-attended and beneficial
event. Beneficial not just for our 49 exhibitors, but for
everyone who attended! NESCA's Trade Show brought together
hundreds of people, all with a common tie; a direct connection to
northeastern New York's commercial/industrial construction
industry. Many of our region's general contractors,
subcontractors, architects and engineers, and public and private
owner representatives were in attendance. I can think of no other
event which brings together so many from within our industry for
one evening. The contacts, the communication, the networking
which takes place at the Trade Show really is an amazing thing to
witness! And I have no doubt our exhibitors also walked away from
the Show very satisfied with the turnout and the number of
customers and potential customers they were able to visit with in
just 3-4 hours. The food was great, the door prizes were
outstanding, and I'm very pleased to report that NESCA was able
to raise nearly $1,400 for the Marine Corps Toys for Tots program
through the silent auction. Thank you to our exhibitors for
donating some great items for the silent auction. By the time you
receive this month's Newsletter, I will have attended the
Legislative Planning Meeting of NESCA's state affiliate, the
Empire State Subcontractors Association (ESSA), which is being
held in Syracuse on October 22-23, 1999. Actually I will be
attending this meeting with eight other dedicated members of
NESCA's Board of Directors. The primary purpose of this meeting
will be to allow ESSA's five affiliated subcontractor groups in
Buffalo, Rochester, Syracuse, Albany and New York City to
establish priorities and set our agenda for the 2000 legislative
session. The list of possible legislation ESSA will ultimately
adopt as part of our overall program ranges from recovery of
delay damages on public projects to tort reform, particularly
reform of New York's "Safe Place to Work" Law, which
has absolutely haunted our industry for years. We will also be
discussing a number of regulatory issues which ESSA has been very
involved with, such as the coming "guidance" manuals on
prevailing wage compliance and compliance with construction
industry sales tax regulations which are to be published by the
Department of Labor and the Department of Taxation and Finance
respectively. I encourage all members of NESCA to get as involved
as possible in ESSA's legislative and regulatory initiatives.
Your involvement can range from communicating problem areas
within your business (for which there may be a legislative
solution) to our lobbyist Terry Burke, to sending letters to your
Senate and Assembly representatives in support of our bills when
requested. We're all in this together, so any headway we make in
having our priorities addressed by the Legislature will come back
to benefit our individual businesses and our industry as a whole.
Brian B. Carmer
President
INSPECTOR WHO SUFFERED HEIGHT-RELATED
INJURY NOT PROTECTED BY NY SCAFFOLD LAW (Go Top)
New York State's highest court recently held in
Martinez v. City of New York, 690 N.Y.S.2d 524 (3d. Dept. 1999),
that a person hired merely to inspect a premises prior to
commencement of work, although injured by a fall from a
significant height, is not protected by the New York Scaffold
Law.
In Martinez v. City of New York, Walfredo Martinez
("Martinez") was hired solely as an environmental
inspector to inspect for the presence of asbestos at a New York
City school. In order to inspect an insulation-covered pipe
located near the ceiling, Martinez pushed a desk next to a
closet, stood on it, and attempted to hoist himself higher by
pulling on the top of the closet. He fell and was injured, and
sued for compensation under the New York Scaffold Law.
Martinez' responsibilities were purely on Phase I, the
"project design" phase of the asbestos removal project.
Phase I entailed only the inspection of school buildings and
identification of locations of asbestos therein. Martinez was to
have no role in Phase II of the project, the "abatement
phase", which included the actual cleaning and removal work
on the project. The Court found that while the reach of Labor Law
section 240(1), the New York Scaffold Law, is not limited to work
performed on actual construction sites, the task in which the
injured employee was engaged must be specifically enumerated in
the Labor Law in order for an individual to recover under it. The
Court held that since the duties of Martinez on this job were not
specifically listed in Labor Law section 240(1), he was not
entitled to recover under the Labor Law.
Section 240(1) of the Labor Law requires all contractors and
property owners and their agents:
"in the erection, demolition, repairing, altering,
painting, cleaning or pointing of a building or structure
furnished or erected, or caused to be furnished or erected for
the performance of such labor, 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 a person so
employed".
The Court, noting that section 240(1) is to be liberally
construed to protect employees by placing ultimate responsibility
for safety practices on owners and contractors, stated that the
statute must not be stretched to cover what the legislature did
not specifically intend to include. The Court of Appeals, upheld
the lower courts' decisions dismissing Martinez' Scaffold Law
claims because the task in which he was injured was not performed
during the "erection, demolition, repairing, altering,
painting, cleaning or pointing of a building or structure."
The Court noted that Martinez' work as an environmental inspector
was merely investigatory, as his role in the project would end
prior to the commencement of any actual asbestos removal work.
Further, Martinez' employer was not even the entity which would
carry out Phase II of the project. Martinez was wholly removed
from any conduct such as repairing, altering, or cleaning of the
structure which would connect him to the protections offered by
Labor Law section 240(1).
Therefore, even though a worker's injury may be height-related,
his duties must fit within a category to which the Scaffold Law
aims its protections in order to recover under the New York
Scaffold Law.
Terence J. Burke
NESCA Legal Counsel
Aldi Electric, Inc.
P.O. Box 239
Rotterdam Junction, NY 12150
(518) 372-0541; FAX (518) 887-4082
Contact: Michael Aldi, Jr.
Albany Interiors, Inc.
724 Watervliet Shaker Road
Latham, NY 12110
(518) 783-1404; FAX (518) 783-1209
Contact: Peter Clechenko
Denny Building Contractors, Inc.
77 Charlton Road
Ballston Lake, NY 12019
(518) 384-0002; FAX (518) 384-0002
Contact: David Denny
Siemens Building Technologies
6 British American Blvd., Suite C
Latham, NY 12110
(518) 782-0131; FAX (518) 782-0476
Contact: John Flynn
PREVAILING WAGE FELONY BILL VETOED (Go Top)
Governor Pataki has vetoed a bill which would
have required a five-year debarment from submitting bids on
public projects if a contractor, subcontractor or their officers,
agents or assigns are convicted of a felony related to a public
work project.
Current law provides for debarment upon the rendering of two
final determinations of willful failure to pay prevailing wages
within a six year period or a single final determination which
involves the falsification of payroll records or the kickback of
wages or supplements.
The Governor's September 7, 1999 veto was based on the fact he
felt the bill's language was too broad and that under its
provisions a contractor could be debarred for five years because
of an isolated act committed by a low-level employee despite
efforts by the contractor to prevent such acts.
GOVERNOR SIGNS PREVAILING WAGE BILL (Go Top)
On September 7, 1999, Governor Pataki signed
into law a measure which establishes certain specifications with
respect to the style and content of signs posted at public works
projects regarding the prevailing rate of wages.
Section 220 of the Labor Law has long required contractors and
subcontractors to "post in a prominent and accessible
place" on the work site a legible statement of all wage
rates and supplements as specified in the contract to be paid or
provided for the various classes of mechanics and laborers
employed. This new law, signed as Chapter 458 Laws of 1999, now
requires contractors and subcontractors on a public work site to
post wages and supplements "where the work is
performed". The new law also specifies that such posted
statement of wages and supplements shall be written in plain
English and titled, in lettering no smaller than two inches in
height and two inches in width, with the phrase "Prevailing
Rate of Wages". It also mandates that these signs be
constructed of materials that are capable of withstanding adverse
weather conditions.
This law went into effect immediately, that is, on September 7,
1999. NESCA members are therefore obligated to comply with these
new signage requirements on all your current and future public
works projects.
ESSA WORKERS' COMP. SAFETY GROUP CAN SAVE
YOU MONEY (Go
Top)
Several years ago, NESCA's state affiliate, the
Empire State Subcontractors Association, Inc. (ESSA), established
a workers' compensation safety group designed exclusively for
subcontractors and suppliers doing business in the State of New
York. This member benefit is managed by Allied Safety Management,
Inc. through the State Insurance Fund, and provides many
advantages to today's subcontractor or supplier. Here's five
reasons why you should take a look:
1. GUARANTEED COST: ESSA Safety Group members can lock in premium
costs without the potential of future assessments based on
individual loss experience.
2. ADVANCE DISCOUNT: Controlled advance discount on premiums.
3. YEAR-END DIVIDEND: Members are eligible to receive potential
year-end dividends based on their pro rata participation and
group performance.
4. PROVEN LOSS CONTROL PROGRAM: As a leader in construction
insurance services in the Northeast, Allied Safety Management,
Inc. brings to your particular projects the proven knowledge and
experience gained from thousands of projects and situations.
5. CLAIMS SERVICES: Allied's claims cost-containment program
assists participants at every level -- from proper claim
preparation and accident reporting to prompt claim settlement.