By Henry L. Goldberg, Legal Counsel, Subcontractors Trade Association
Partner, Moritt Hock & Hamroff LLP

Robert J. Fryman
Partner, Moritt Hock & Hamroff LLP

Local Law 196, mandating minimum safety training requirements for workers on construction sites in New York City, was enacted in 2017 and was intended to be phased in between March 1, 2018 and December 1, 2018.  Due to limited availability of training resources and the tremendous amount of construction workers needing training, its implementation was delayed several times.

However, D-Day for Local Law 196 of 2017 is now almost upon us:  December 1, 2019 marks the official implementation and enforceability of the law.  All contractors, subcontractors, specialty trade contractors and others providing labor to a project site in New York City, as well as all developers and project owners, need to understand and be familiar with its requirements and the penalties that may be imposed for failing to comply.

What does the new law require?

For construction and demolition workers, Local Law 196 of 2017 requires that on job sites having a Construction Superintendent, Site Safety Coordinator, or Site Safety Manager each worker must have 30 hours of site safety training by December 1, 2019 (and 40 hours of safety training by September 1, 2020).

Workers must be able to demonstrate their satisfaction of the safety training requirements upon demand.  Upon completion of a training course, the course provider must issue a wallet-sized Site Safety Training (“SST”) Card which must include:

• Document security features designed to deter forgery and counterfeiting.
• Unique identification card number.
• Photograph of the person to whom it was issued.
• The printed name and signature of the card holder.
• Date of course completion.
• Expiration date.
• Name and address of training provider issuing the SST Card.
• A summary description of the type of training and number of credit hours completed.

In order to apply as SST under Local Law 196 any training, including OSHA training, must have been taken within the past five years.

Workers at job sites that only involve minor alterations or the construction of a new 1-, 2-, or 3-family home are not required to be trained. Delivery persons, flag persons, professional engineers and registered architects also do not require Local law 196 training.  However, if they are serving as a Site Safety Manager, Site Safety Coordinator, Concrete Safety Manager, Construction Superintendent or competent person designated by a Construction Superintendent, then they must have the appropriate training to comply with Local Law 196.

Trade contractors possessing a license for their particular trade (e.g., master electricians) do not need to be SST trained or hold an SST Card. However, employees working under their supervision do need to be trained.

“Competent Person” on Site

Local Law 196 of 2017 requires Supervisors at job sites requiring a Construction Superintendent, Site Safety Coordinator or Site Safety Manager receive 62 hours of safety training by December 1, 2019. This includes Site Safety Managers, Site Safety Coordinators, Concrete Safety Managers, Construction Superintendents and Competent Persons designated by Construction Superintendents.  Supervisors must obtain the following SST: 30-Hour OSHA, and 8-Hour Fall Prevention, and 8-Hour Site Safety Manager Refresher/Chapter 33, and 4-Hour Supported Scaffold, and 2-Hour Drug and Alcohol Awareness, and 2-Hour Site Safety Plan, and 2-Hour Tool Box Talks, and 2-Hour Pre-Task Safety Meetings, and 2 hours of General Electives and 2 hours of Special Electives.

New York City Building Code Section 3301.13.12 requires that a Construction Superintendent designate a Competent Person for each job site for which he/she is responsible.  A designated Competent Person must always be present at the job site when work is occurring.  The designated “Competent Person” must possess a Supervisor SST card.

Foremen are only considered a supervisor for the purposes of Local Law 196 if they are serving on a construction site as a Construction Superintendent, Site Safety Coordinator, Site Safety Manager, Concrete Safety Manager, or Competent Person.

How will Local Law 196-2017 be implemented and enforced?

Applicants for building permits will be required to certify to the Department of Buildings that workers who will be working under the permit will have the required training.

Permit holders are required to maintain a log to demonstrate that all of the workers present on a job site have the required SST.  If DOB discovers that a permit holder has failed to maintain the required log, it may issue violations with a civil penalty of $2,500 for each violation.

DOB will conduct unannounced inspections at construction sites, particularly where untrained workers have been discovered previously.

If DOB discovers workers at a construction site lacking the required SST, violations with civil penalties as high as $5,000 per untrained worker may be issued to the owner of the site, the permit holder and the employer of the untrained worker.

SST cards expire after five years. Card holders will be required to take a refresher course every five years to renew their SST card.

Construction worker SST cards are renewable by demonstrating that the card holder has, within one-year prior to submitting a renewal application, completed:

• 4-Hour Fall Prevention
• 4-Hour Supported Scaffold User

Supervisor SST cards also expire after five years and are renewable by showing that the  applicant has, within one-year prior to submitting a renewal application, completed:

• 8 Hours Fall Prevention
  § 4 Hours Support Scaffold
  § 2 Hours Tool Box Talks
  § 2 Hours Pre-Task Safety Meetings

Where can workers get SST training?

Many trade unions are providing training to their membership.

Workers can also get training from a DOB approved training provider, see https://www1.nyc.gov/site/buildings/industry/department-approved-course-provider-list.page or from an OSHA approved training provider, see https://www.osha.gov/dte/outreach/outreach_trainers.html.  OSHA provides online training tools to help obtain the required training for applicable workers, see https://www.osha.gov/dte/library/.  OSHA also provides information on training requirements for employers and resources such as free publications, videos, and other assistance offers to help employers obtain the required training for their employees.

Small construction businesses in New York City (with 1-15 employees, and/or certified M/WBEs in the construction industry with 1-15 employees,) may be eligible for free safety training for their employees provided by the NYC Department of Small Business Services. For more information go to https://www1.nyc.gov/nycbusiness/article/construction-site-safety-grant-program

Does my project/job site require Local Law 196-2017 safety training?

If you are unsure whether your project or job site requires the safety training mandated by Local Law 196, you can check by using the NYC Department of Buildings online Site Safety Construction Map at https://www1.nyc.gov/assets/buildings/html/site-safety-construction-map.html and entering the project/job site address.

# # #

MHH COMMENTARY:

This new law, enacted following a spate of high-profile construction site accidents in New York City which resulted in serious injuries, deaths and extensive property damage, has already endured a fitful, if not embarrassing, start for the City and the Department of Buildings in particular.  As a result, project owners, developers, contractors and subcontractors on all projects subject to Local Law 196 should anticipate a belated, but vigorous and highly publicized start to DOB enforcement efforts. Given the prior false starts, the City will no doubt over compensate in its initial efforts. Don’t allow yourself to be made an example of.

In addition to the significant civil fines and penalties, all contractors should understand that any inability to fully and timely comply with Local Law 196 and/or the lack of trained Local Law 196-compliant labor will not relieve contractors of any of their obligations under their contracts.

Contractors should fully expect upstream parties with whom they are contracting to demand reimbursement for any fines assessed against them by the DOB. Despite all of the adjournments of the initial DOB start date, we believe substantial segments of the industry are still not ready for strict implementation. Therefore, assess your exposure with regard to schedule impacts and indemnity obligations. You may need to prioritize and allocate your SST-trained labor resources, until more (if not all) of your labor force is able to demonstrate compliance with Local Law 196.

The true extent of the DOB’s enforcement efforts, beyond the front pages of the newspapers, and its effect on labor availability, project staffing and scheduling, will not be known for several months.  We will follow with any new and further developments as they become available.

As always, feel free to call the STA Office, or either of us directly, with any questions about this major NYC regulatory initiative.

Henry L. Goldberg, is a partner at Moritt Hock & Hamroff LLP, and the Chair of its Construction Practice Group. Please feel free to contact Mr. Goldberg directly at (516) 873-2000 or via email at hgoldberg@moritthock.com with any questions.

Robert J. Fryman, is a partner at Moritt Hock & Hamroff LLP. Please feel free to contact Mr. Fryman directly at (516) 873-2000 or via email at rfryman@moritthock.com with any questions.