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  • Cannabis and Scaffold Law

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    Nick Reisman
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    The document is a letter from various construction industry groups to Governor Cuomo, Senate Majority Leader Stewart-Cousins, and Assembly Speaker Heastie regarding concerns about legalizing adult use cannabis in New York. The groups express concerns about workplace safety due to impairment from cannabis, the lack of reliable drug testing, and increased insurance risks and costs under the state's "Scaffold Law" which imposes absolute liability. They strongly urge including reform of the Scaffold Law in any agreement to legalize adult use cannabis.

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    The document is a letter from various construction industry groups to Governor Cuomo, Senate Majority Leader Stewart-Cousins, and Assembly Speaker Heastie regarding concerns about legalizing adult use cannabis in New York. The groups express concerns about workplace safety due to impairment from cannabis, the lack of reliable drug testing, and increased insurance risks and costs under the state's "Scaffold Law" which imposes absolute liability. They strongly urge including reform of the Scaffold Law in any agreement to legalize adult use cannabis.

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    © All Rights Reserved
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    476 views4 pages

    Cannabis and Scaffold Law

    Uploaded by

    Nick Reisman
    The document is a letter from various construction industry groups to Governor Cuomo, Senate Majority Leader Stewart-Cousins, and Assembly Speaker Heastie regarding concerns about legalizing adult use cannabis in New York. The groups express concerns about workplace safety due to impairment from cannabis, the lack of reliable drug testing, and increased insurance risks and costs under the state's "Scaffold Law" which imposes absolute liability. They strongly urge including reform of the Scaffold Law in any agreement to legalize adult use cannabis.

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    of 4

    March 17, 2021

    The Honorable Andrew Cuomo


    Governor of New York State
    Executive Chamber
    State Capitol
    Albany, New York 12224

    The Honorable Andrea Stewart-Cousins The Honorable Carl Heastie


    Majority Leader Speaker
    New York State Senate New York State Assembly
    State Capitol – Room 330 932 Legislative Office Building
    Albany, New York 12247 Albany, New York 12248

    RE: Adult Use Cannabis, Worker Safety, Testing and “Scaffold Law” Ramifications

    Dear Governor Cuomo, Majority Leader Stewart-Cousins and Speaker Heastie:

    As negotiations proceed to legalize adult use cannabis in New York State, the construction
    industry is gravely concerned about the ramifications of worker safety, worker impairment, drug
    testing and scaffold law related insurance claims.
    The legalization of adult use cannabis in New York State is particularly troubling for the
    entire construction industry due to the safety concerns for workers. Cannabis and its derivatives
    are potent drugs that impair an individual’s judgement posing a significant danger to themselves,
    co-workers, and the public. While a construction safety supervisor or law enforcement
    professional may be able to smell an individual that recently smoked cannabis, its derivatives such
    as vaping and edibles are not as easily detectable.

    Current unregulated cannabis testing technologies and drug recognition methods do not
    provide a clear indication of worker impairment which will jeopardize workplace safety. The
    unregulated testing technologies can only detect the presence of cannabis for a short period of time
    and drug recognition experts are limited to highly skilled law enforcement professionals.
    Furthermore, the adult use cannabis proposals from the Executive and Legislature do not establish
    a standardized impairment level complicating an employers’ duty to provide a safe working
    environment.

    Adult use cannabis poses an unmanageable insurance risk for contractors, property owners,
    and governmental entities because of New York’s “Scaffold Law.” The tremendous costs and
    limited availability of the commercial general liability insurance have an impact across New York
    because construction costs go up, fewer workers are hired, consumers pay higher prices for goods
    and services, and the economy suffers. The “Scaffold Law” (NYS Labor Law sections 240/241)
    imposes absolute liability for gravity-related injuries on contractors, property owners and
    governmental entities engaged in construction, repair, or demolition work. Absolute liability
    means that the contributing fault of an injured worker, such as consuming cannabis at the
    workplace will be virtually irrelevant in court.

    The current standard of “absolute liability” must be replaced with a standard of


    comparative negligence—generally or at a minimum in cases where the worker had cannabis or
    another impairing substance in their system at the time of the accident. Under this standard,
    liability is apportioned by a judge or jury, in proportion to actual fault. This common-sense
    reform would not prevent injured workers from bringing lawsuits for their injuries. It would
    simply give New York contractors, property owners, and governmental entities the chance to
    defend themselves in court when a worker’s own negligence or impairment is a contributing factor
    in an accident. This is the way every other state and virtually every other area of our civil justice
    system functions.

    We strongly urge you to include “Scaffold Law” reform in the final agreement on adult use
    cannabis.

    Very truly yours,

    A.J. Baynes, CEO/ President Scott Hobson, Assistant Vice President,


    Amherst Chamber Of Commerce Government Relations
    Big I New York
    Michael J. Elmendorf II, President & CEO
    Associated General Contractors of Grant Loomis, Vice President, Gov’t Affairs
    New York State Buffalo Niagara Partnership
    Aaron Hilger, President Mitchell Pally, Chief Executive Officer
    Builders Exchange of Rochester Long Island Builders Institute

    Brad Walters, Executive Director Marc Herbst, Executive Director


    Builders Exchange of the Southern Tier Long Island Contractors’ Association

    John O’Hare, Managing Director Randy Wolken, President


    Building Contractors Association MACNY, The Manufactures Association

    F. Matthew Pepe, Executive Director Greg Biryla, NY Senior State Director


    Building Contractors Association of Westchester National Federation of Independent Business
    and Mid-Hudson Region
    Lewis A. Dubuque, President
    Earl R. Hall, CEO New York State Builders Association
    Building Industry Employers of NYS
    Lindsey Mills, Chairman
    Thomas J. O’Connor, Vice President, New York State Council of NECA
    Government Relations
    Capital Region Chamber Mark Dorr, President
    New York State Hospitality & Tourism
    Alan Seidman, Executive Director Association
    Construction Contractors Association
    Rita Ferris, President
    Earl R. Hall, Executive Director Northeastern Retail Lumber Association
    Construction Employers Association of CNY
    Michael Misenhimer, Executive Director
    Joseph Benedict, Executive Director Northeastern Subcontractors Association
    Construction Exchange of Buffalo & WNY
    Bradford J. Lachut, Director of Gov’t &
    John T. Cooney Jr, Executive Director Industry Affairs
    Construction Industry Council of Westchester Professional Insurance Agents
    and Hudson Valley Inc.
    Earl R. Hall, Executive Director
    Todd G. Helfrich, President & CEO Syracuse Builders Exchange
    Eastern Contractors Association
    Kendra Hems, President
    Mike Durant, President & CEO Trucking Association of New York
    Food Industry Alliance of New York State
    Justin Wilcox, Executive Director
    Robert Wessels, Executive Director Upstate United
    The General Contractors Association of
    New York, Inc. Ken Thomas & Jason Cintron
    Co-Managing Directors
    Stacey Duncan, President & CEO Minority & Women Contractors and
    Greater Binghamton Chamber of Commerce Developers Association

    Bob Duffy, President


    Greater Rochester Chamber of Commerce

    Tom Stebbins, Executive Director


    Lawsuit Reform Alliance of New York
    Courts have repeatedly ruled worker impairment is not a
    valid defense to a claim brought under the Scaffold Law.

    Keane v. Sin Hang Lee (188 A.D.2D 636)


    • “None of the defendants’ assertions concerning the plaintiff’s contributory
    negligence, including his use of marihuana on the afternoon in question, can
    be interposed as a defense to a claim of liability under Labor Law §240(1)”

    Samuel v. Simone Development Company (13 A.D.3D 112)


    • “Plaintiff’s alleged drug use amounts, at most, to comparative negligence
    which is not a defense to a §240(1) claim.”

    Hodge v. Crouse Hinds Div. of Cooper Indus. (207 A.D.2D 1007)


    • “None of the defendant’s assertions concerning the plaintiff’s contributory
    negligence, including the plaintiff’s ingestion of prescription drugs on the
    afternoon of the accident, constitutes a defense to a Labor Law §240(1) cause
    of action.”

    Tate v. Clacy-Cullen Storage Co, Inc (171 A.D.2D 292)


    • “Could plaintiff Harold Tate’s alleged intoxication as a contributing cause of
    the happening of the accident be a defense to the cause of action? The short
    answer is ‘no.’”

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