With construction less impacted by the COVID-19 pandemic, and with a large number of projects in progress across the country, the industry is seeing a rebound in construction activity. This increase in activity, however, means that more demands are being placed upon contractors and the workforce to complete projects on time and on budget, making it tempting to overlook essential construction safety policies, procedures, and protocols in an attempt to complete projects more quickly.

However, recent tragic accidents at high-profile construction projects in the New York City area highlight a rise in construction worker deaths and underscore the need for renewed focus on construction safety. In 2022, 11 workers died, and 554 workers were injured in 751 accidents on construction projects in New York City. Owners and construction managers that have the difficult task of ensuring the safety of workers and project personnel might find it beneficial assess their compliance program and safety protocols against current federal guidelines, while keeping in mind that state and local regulatory bodies may have additional protocols to observe.

Safe Working Practices: A Focus on Enforcement

The construction industry and federal and state government oversight agencies, such as the U.S. Department of Labor Occupational Safety and Health Administration (OSHA) and the New York City Department of Buildings (NYCDOB), continuously seek to provide a safe workplace for construction workers.

Even so, OSHA continues to levy substantial fines on contractors. New York City accidents are the highest level in three years and statistics from the U.S. Bureau of Labor Statistics continue to show no decrease in workplace injuries in construction.

Various states and local agencies are taking steps to curtail injuries on construction projects and ensure safe working practices. NYCDOB recently issued its 2022 Construction Safety Report, which outlined several new initiatives such as a winter construction safety campaign, year-round safety education initiatives, changes to construction superintendent regulations, and the launch of a major projects program.

In December 2022, New York State also passed legislation establishing Carlos’s Law. This legislation amends current law to increase the penalties for criminal corporate liability for the death or serious physical injury of an employee, a felony or misdemeanor, by a fine of up to $500,000.

As another layer of protecting worker safety at construction sites, various District Attorneys investigate accidents and, where possible, obtain an indictment and conviction against responsible parties. Construction companies, owners, and developers need to consider the potential risk of such enforcement actions when developing compliance programs. An independent compliance monitor, such as K2 Integrity, has experienced staff accustomed to working with contractors and law enforcement agencies and can assist in developing and promoting rigorous compliance programs.

Implications for Changes in Oversight

With changes in oversight comes differing opinions; for example, in 2021, the Association of General Contractors of New York State (AGC NYS) submitted a Memorandum of Opposition to Carlos’s Law while the law was still a bill under review. Ultimately, changes in oversight may result in the following:

• Increased complexity of contract agreements: As contractors seek to manage risk brought by changes such as Carlos’s Law, contracts may become more complicated as parties seek to define additional terms to hedge against risk.
• Increased project costs: Costs may rise as contractors require more supervision or oversight to minimize their risks during construction projects.
• Increased enforcement: It is likely that agencies such as NYCDOB will increase the number of inspections conducted, resulting in, for example, more fines and more stop work orders.

Next Steps: Implementing a Compliance Program

As highlighted, government agencies such as NYCDOB are planning several measures to improve safety at construction projects; however, given the large number of construction projects in the New York City area, the agency’s enforcement resources limit its ability to visit construction projects and observe conditions.

Building owners and developers are investing a large amount of money into projects and want their projects completed on time and on budget. Insufficient oversight and inadequate safety controls can place that investment at risk. Many rely upon the contractors that they work with to accomplish these goals. So, what can be done to ensure the best outcome? While a robust contractor safety program is key to ensuring a successful project, third-party consultants can be engaged to implement an additional compliance program and provide third-party independent oversight. Some components of such a program could include:

• Help with clearly defining and delineating provisions for compliance in contractual documents, as contractors seek to manage the risks inherent in the implementation of Carlos’s Law.
• Assistance clearly defining roles and responsibilities on site so that compliance can be effectively managed and mitigation, if necessary, can be implemented in a timely manner.
• Implementation of a hotline so that workers can report (anonymously if requested) unsafe work conditions. The hotline can be monitored by professionals from a firm such as K2 Integrity, to provide independence.
• Performance of audits at the project level to assure compliance with controls that have been established.

The use of an independent compliance monitor can provide expertise to assure that the goals outlined above are achieved. Firms such as K2 Integrity have experience in helping clients design and implement robust compliance programs and are uniquely qualified to provide continued assistance.

In addition, retaining an independent third-party monitor that is not connected to the construction team can be a significant benefit when seeking to provide an objective opinion on safety compliance. One benefit is that the level of input that such a monitor can have is highly customizable depending upon client needs; for example: a firm can be engaged to evaluate certain specific risk areas, or provide specific tasks such as root cause analysis of issues that may happen on a project.