A recent ENR New York article reported that safety precautions implemented and followed by a local construction company did not prevent a city crane from collapsing at 60 Hudson Street in early February of this year. These regulations were put into place after several cranes had collapsed in New York over the past several years. The accident killed one pedestrian, and injured three others. While the news report states the company did in fact follow the precautions, this is not always the case in work-related accidents. Below is a basic understanding of who is responsible if an employer fails to follow safety guidelines and an incident occurs.
New York Safety Law
While a company may have formal, written safety polices in place that does not automatically mean its employees are following these guidelines.
Under New York’s Workers’ Compensation Reform Law of 2007, there are two programs administered by the New York State Department of Labor (NYDOL) directly aimed at workplace safety and loss prevention. One is mandatory for employers, while the other is voluntary. The required program, known as Code Rule 59, requires an extensive safety and loss prevention consultation – as well as an evaluation – by the NYDOL for employers with a payroll of over $800,000 or a workers’ compensation (WC) experience modification rating above 1.2. Employers who fail to comply with the law are hit with a five percent surcharge on the manual portion of their workers’ compensation premium, which increases five percent annually for each year of noncompliance.
The voluntary program, referred to as Code Rule 60, gives credit to self-insured employers as well as employers with a workers’ compensation experience rating of less than 1.3 and a yearly workers’ compensation premium of more than $5,000.00. Employers are given credit if they volunteer to start one or more programs for workplace safety, return to work, or drug and alcohol prevention.
Who is Responsible?
While there is a general duty clause for employees to follow safety procedures, the Occupational Safety & Hazard Administration (OSHA) does not fine individual workers for workplace safety violations.
From an employer’s standpoint, New York workers’ compensation is a no-fault insurance program providing benefits – such as temporary total benefits, permanent partial benefits and permanent total benefits – to employees who suffer work-related injuries and illnesses. In other words, it generally does not matter if a worker was careless when injured. There are, however, workers’ compensation exceptions. For example, if an employee is under the influence of drugs or alcohol when the incident occurs the claim will likely be denied. A majority of the employers require a drug test after a work-related injury and a positive result will end up in a denial. Likewise, an employee filing a workers’ compensation claim must establish that the injury or illness was suffered during the course of his or her regular employment and the accident was not caused by his or her recklessness. Some courts have ruled in favor of the injured employee when such cases are disputed, finding the injury is covered as long as the worker’s recklessness was not the sole cause of the injury.
Denied Workers’ Compensation?
Workers are injured on the job in America each day. While some claims are straightforward, most of these cases result in denied workers’ compensation benefits. Additionally, an employer may allege the employee is at fault for the injury to try to avoid paying altogether. For these reasons, if you or someone you know has suffered a workplace injury or illness, contact a knowledgeable and experienced attorney. The Law Office of Jeffrey K. Kestenbaum provides skilled legal services throughout New York, including Brooklyn and the Bronx. Call (718) 237-5586 or click here today to schedule your initial consultation.
