In 2020, the United States saw a significant decrease in non-fatal workplace injuries, which dropped to 2.1 million from 2.8 million the year before. While the precise extent to which this reduction in workplace injuries is attributable to COVID-19 is unknown, the pandemic was undoubtedly a significant factor. It is also unclear to what extent the pandemic affected the number and rate of workplace incidents in 2021 or might continue to do so in 2022 and beyond.

However, it is reasonable to expect that, as pandemic-related restrictions are removed and life returns to normal, the construction industry will revert to pre-pandemic employment levels and beyond. It is also reasonable to conclude that, once that level of recovery is attained, the number and rate of both fatal and non-fatal workplace incidents will increase substantially.

Even with the significant reduction in the overall number of workplace injuries in 2020, the United States still saw nearly 8,000 construction workers miss at least one day of work due to an injury sustained on the job, according to the U.S. Bureau of Labor Statistics (BLS). And, despite construction accounting for just 6% of jobs, BLS reports that construction-related incidents account for 20% of workplace deaths, or three every day. This one-fifth share of workplace fatalities makes construction the third-deadliest industry in the United States.

Each construction-related fatality results in an economic loss of approximately $6 million—$6 billion per year overall. This represents approximately half of the cost of all construction-related injuries, fatal and non-fatal. In 2019, non-fatal incidents cost workers’ compensation insurance carriers more than $2.5 billion in medical and lost-wage benefits. These numbers are stark evidence of the risks attendant to construction work and the concomitant need for stringent workplace regulations. They also evince not only the need for avenues of redress for construction-incident victims and their families but also the importance of construction companies fully understanding the laws and regulations that govern workplace incidents.

OSHA and the States

At the federal level, the Occupational Safety and Health Administration (OSHA) oversees workplace safety. Twenty-one states have established their own OSHA-approved workplace safety and health programs covering private- and public-sector workers. Five other states have programs that cover state and local workers, leaving OSHA to govern their private-sector employment population. Every state has its own workers’ compensation laws, codified by statutes that vary from state to state. There are also workers’ compensation laws specifically for employees of the federal government and others that cover different industries, such as railroad employees and merchant sailors.

Under the law in most states, every business must have some form of workers’ compensation insurance to cover injured employees. Each state also has its own workers’ compensation laws that afford benefits to workers injured on the job and, in most cases, limit those workers’ rights to sue their employers. The scope of work encompassed by these statutory frameworks varies—from very broad, such as Michigan’s and Pennsylvania’s laws, which apply to “[a]ll natural persons who perform services for another for valuable consideration,” to extremely narrow, such as Wyoming’s, which applies only to those workers “engaged in extra hazardous employment.”

Similarly, these workers’ compensation laws vary as to the category of person to whom they apply. For example, North Carolina’s and Virginia’s protections apply to “aliens and minors…whether lawfully or unlawfully employed,” while Wyoming’s protective framework applies only to “legally employed minors” and “aliens authorized to work by the United States Department of Justice.” The stringency of the protections afforded to injured workers seeking compensation by way of third-party liability claims varies from state to state as well.

Among legal practitioners, the New York Labor Law is known for affording perhaps the greatest level of protection for injured workers by imposing strict liability on third parties in many construction-incident scenarios. For example, one section of the law provides for strict liability, with certain exceptions, on the part of general contractors and property owners for gravity-related injuries—including falls, which are the most common cause of construction-related incidents.

Under this statute, it is not necessary for injured workers to prove the general contractor or owner was negligent in order to impose liability upon them; they must prove only that the incident was not solely the result of their own negligence and that it occurred because of the absence or inadequacy of a particular safety device. The insurance and construction industries have spent vast amounts of money lobbying for the reform of these liberal protections, but New York’s legislature has remained steadfast in protecting injured workers. Similar statutory schemes exist in other states as well.

Oregon’s Employer Liability Law (ELL) “imposes near-strict liability on owners, contractors and subcontractors who are responsible for work involving risk or danger.” In a relatively recent case in 2016, the ELL was held to impose liability on contractors that retain even the slightest control over safety measures on a jobsite, including holding safety meetings. On the less-restrictive end of the spectrum, Massachusetts law imposes a more traditional negligence standard under which injured workers must prove the party to be held liable owed them a duty of care and breached that duty by engaging in negligent or intentional conduct that caused their injuries.

Need to Know

Given the broad spectrum of statutes and common law that control both first-party workers’ compensation benefits and third-party actions that pertain across the 50 states, it is imperative that everyone involved in a construction incident—contractors and injured workers alike—understands the governing framework in the jurisdiction where the incident occurred. That almost always involves seeking qualified local counsel; it is unreasonable to expect an attorney in one jurisdiction to be familiar with, much less well-versed in, the law of another state to provide advice or representation in such an important legal matter.

As with any discussion of workplace safety, the most important work happens before an incident occurs. Construction companies of all types—from the largest developers to the smallest subcontractors—should prioritize seeking competent legal advice, so they can obtain appropriate insurance coverage and maintain the necessary safety standards to limit the possibility of job-related injuries and prevent them from being held liable when they occur.