Union construction workers demonstrate in Manhattan in 2017 to protest worker deaths.

Photo by Michael Nigro/Sipa via AP Images

The hoped-for progress in New York City construction safety came too late for laborer Jose Fortina Armanta Hernandez. At 8:37 a.m. on May 27, 2021, while jackhammering a roof section on a Brooklyn building, the section Armenta stood on gave way and he fell 60 ft. When last year his family sent his body from New York City to Mexico to be buried, they used a GoFundMe page to raise funds for the laborer's funeral.

His death came at a time when New York City seemed to be turning a statistical corner as far as cutting annual fatal construction accidents. A new safety law awaiting signing by Gov. Kathy Hochul may bring more progress.

But safety advocates aren't celebrating yet. Nor are contractors comfortable with the new law as worded.

Partly because of the pandemic slow-down and stepped-up city safety enforcement, after three years of consistent increases, 13 construction workers died on the job in 2020, compared to 24 the year before. Construction fatalities had fallen for five consecutive years in all of New York State, from 55 in 2019 to 41 in 2020, according to the Bureau of Labor Statistics.

This year, a much-anticipated new law promises to dramatically increase monetary penalties against construction employers found guilty of criminal safety lapses. Supporters say it will help drive construction accidents and deaths still lower. After approval by the state legislature in the spring, Carlos' Law, named for a 22-year-old Carlos Moncayo, who died in a 2015 trench collapse, awaits only Gov. Kathy Hochul's signature to become law.

A GoFundMe page organized last year for the family of Jose Armenta.

But partly because of the still stubbornly high number of deaths, safety advocates are less than joyous.

"New York should be a national leader in workers safety," said Charlene Obernauer, executive director of the New York Committee for Occupational Safety & Health, a nonprofit organization that performs safety training and advocates for worker safety.

In a statement that accompanied the organization's annual accident report, Obernauer said,  "But the data reveal that we continue to lead the nation in construction worker fatalities, despite COVID-19 shutdowns."

New York City's Dept. of Buildings, which uses a different method of counting, is more optimistic.

It noted in its annual report that for a third year in a row building construction-related incidents, injuries and deaths declined, "even as construction activity has rebounded from a pandemic-related low in 2020." In 2019, the city counted 13 construction-related fatalities, with eight in 2020 and nine in 2021.

Smaller, open-shop contractors and smaller projects account for the majority of New York City building construction deaths, most due to falls and struck by/crushed accidents. New York City's Dept. of Buildings 13 months ago adopted a zero-tolerance approach to safety violations and last year began inspection "sweeps" of jobsites to enforce it.

New City Construction Safety Rules

The city council also adopted five new laws proposed by the buildings department, including licensing all general contractors, requiring licenses for all superintendents and safety professionals of buildings seven-to-nine stories tall, tightening rules for light cold-formed steel construction and prohibiting the use of stand-off brackets for C-hook suspended scaffolds.

NYCOSH notes that while fatalities are down, the total number of OSHA inspections are down, too. The organization, which is partly union-funded, recommends measures including required training for construction workers, keeping New York's Labor Law 240 (commonly known as the scaffold law and which presumes liability by employers and gives workers the right to sue over injuries), doubling OSHA's budget and expanding criminal prosecutions of contractors.

Carlos' Law will help, too, says NYCOSH. It will expand the potential financial penalty against an employer convicted of endangering the welfare of a worker from a maximum of  $10,000—"a trivial amount," according to NYCOSH—to $300,000 and $500,000 minimums depending on the crime.

Union construction employers and minority and women contractors are hoping Gov. Hochul slightly alters the wording.

A page from the New York City Dept. of Buildings annual report describes the accident that killed Jose Armenta.

Under the law, the state penal code is revised to better protect workers where supervisors negligently fail to comply with safety rules and endanger a worker's welfare. In the text, a supervisor is broadly defined to include individuals and employers of all kinds.

The Building Trades Employers Association, which represents union contractors in New York City, the local chapter of the National Association of Minority Contractors and the Women Builders Council, are asking Gov. Hochul to make changes before signing it into law.

In a letter to the governor, the groups ask Hochul to remove the minimum amounts because they would harm small, minority and women-owned contractors. They ask Hochul to insert the term "reckless" as the standard for the minimum fine. And they want her to change the wording so it applies only to "serious" injury, not just injury.

"The changes we're asking the governor to make are minimal and we're trying to make the bill better and fairer," says Louis J. Coletti, chief executive of the Building Trades Employers Association.

"Our objections are not designed to undermine safety," he adds. "We believe that on every job, whether union or nonunion, workers deserve to go home" in the same good health that they started the day.

Meanwhile, federal safety officials still have business to settle with Armenta's employer.

The U.S Occupational Safety and Health Administration has proposed $374,000 in penalties against Richmond Construction related to the accident and subsequent inspections. The company had previously not commented on the accident and OSHA records show that it is contesting the penalties.

OSHA penalties are usually reduced under a settlement, negotiated between attorneys for the company and OSHA, where the employer agrees to make changes in its practices in the future.

Deputy Editor Richard Korman, who has edited ENR's Risk Review newsletter since 2012, helps run ENR's business coverage, selects ENR's commentary and op-ed viewpoint submissions and oversees editorial content on ENR.com. He recently completed a fellowship on drone safety with the McGraw Center for Business Journalism at the Craig Newmark Graduate School of Journalism at CUNY. In 2015 he won the Timothy White Award from American Business Media for investigations of individual surety fraud and workplace bullying. Richard's freelance writing has appeared in the Seattle Times, the New York Times, Business Week and the websites of The Atlantic and Salon.com. He admires construction projects that finish on time and budget, pay before the earth completes its annual orbit of the sun, record zero injuries and assign risk to parties who control an activity or willingly finance the risk.

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