EDITOR’S NOTE We hope this edition of Labor Law Update finds you and your loved ones healthy and safe. Goldberg Segalla remains in full operation, continuing to advise our clients around the clock. Put succinctly, the COVID-19 pandemic has permeated every aspect of our lives—New York’s Labor Law and construction practice are no exception. Like most industries, construction in New York as a whole has been deeply affected by the current pandemic. All construction has ceased except for “essential” construction on projects such as hospitals, homeless shelters, and infrastructure. As a result, numerous construction projects have been suspended or delayed. We expect the frequency of accidents leading to Labor Law claims will diminish over the next few months. Further, the ability of the plaintiffs’ bar to initiate suit has been curtailed. At this time, the court is not accepting filings, and the statute of limitations on all personal injury actions has been tolled into May 2020. We anticipate that there will be an influx of new Labor Law actions once the courts re-open and accept filings.
THEODORE W. UCINSKI III 516.281.9860 tucinski@goldbergsegalla.com
We anticipate numerous claims to be filed arising from exposure to COVID-19. As it pertains to the Labor Law, COVID-19 claims will likely be brought under sections 241(6) and 200. To bring a claim under section 241(6), a plaintiff must plead and prove a violation of the New York State Industrial Code. It further requires the Industrial Code violation be the proximate cause of the injuries plaintiff sustained in a construction–related accident. 23 NYCRR 1.7(G), entitled “Aircontaminated or Oxygen Deficient Work Areas,” may support such a claim effectively grafting the Labor Law onto the COVID-19 landscape. This section of the Industrial Code requires confined areas to be sufficiently ventilated so as to prevent workers from inhaling dangerous air contaminants. We note, however, that a virus is not a typical air contaminant expected at a job site and therefore it will be left up to the New York Courts to further define this issue. One other potentially applicable provision is 23 NYCRR 1.8 (b), which requires employers to provide respirators appropriate for the task being performed. Workers who contract COVID-19 and were not provided with N-95 masks in the weeks leading up to a job shut-down or those working on essential construction during the pandemic may try to claim violations of this section as well. Under Labor Law 200, a plaintiff may proceed under one of two theories. Where an accident arises from a defective or dangerous condition on the project, the plaintiff must show the owner or general contractor created the condition or had sufficient notice of the condition to impute liability. Where the accident arises out of the means and methods of the work, a plaintiff must show the defendants directed, controlled, or supervised the work with enough specificity to impute liability. It seems, at least at this juncture, that plaintiffs may be able to proceed under either theory when it comes to COVID-19 exposure. Where claims arise from failure to provide approved masks or for close-proximity work conditions a plaintiff may argue the defendants created a dangerous condition or the condition arose out of the manner in which the work was conducted. Although the future is uncertain and the “new normal” in the construction industry may be very different from what we have experienced in the past, you can rest assured that Goldberg Segalla will remain steadfastly at the forefront of any changes to meet all of your continued and emerging legal needs. Please note that we offer COVID-19-related publications, fact sheets and other educational resources, webinars, and blogs, along with the services of our COVID-19 Rapid Response Task Force. For more information, please refer to page 19 of this document or contact us directly. As always, we hope you find this edition of Labor Law Update to be a helpful and practical resource. If you any questions about the cases or topics discussed or have any feedback on how we can make Labor Law Update more useful, please do not hesitate to contact us.
Theodore W. Ucinski III
Kelly A. McGee
KELLY A. McGEE 646.292.8794 kmcgee@goldbergsegalla.com