Comments on the NYC Department of Buildings (“DOB”) Proposal to amend the course provider rule to address site safety training, add penalties relating to site safety training and add a new rule regarding site safety training

Comments on the NYC Department of Buildings (“DOB”) Proposal to amend the course provider rule to address site safety training, add penalties relating to site safety training and add a new rule regarding site safety training.

The Real Estate Board of New York (“REBNY”) submits these comments on behalf of its membership of more than 17,000 developers, builders, owners, managers and brokers of real property in New York City. 

The proposed rules amend §105-03 of Subchapter E of Chapter 100 of Title 1 of the Rules of the City of New York to include the requirements for Site Safety Training (“SST”) Providers as outlined in Local Law 196 of 2018 (“LL196”).  Specifically, four new sub-sections are added - SST Course Instructors; SST Course Providers; SST cards to be issued upon course completion; and Record-keeping and verification of SST Cards.  Aside from technical and other minor, clarifying edits, the existing body of §105-03 remains substantially unchanged.

Notwithstanding the proposed rule-making at hand, the breadth of §105-03, entitled “Department-approved Courses”, regulates training for skilled and/or specialized trades which often culminates in licensing.  The section does not include general construction worker training which LL196 requires.  According to its scope, §105-03 “outlines the requirements for DOB-approved courses required by the Administrative Code and Department rules for training, license qualification and licensee continuing education.”[1]

Safety Training v Skill-specific Training

LL196 is not trade- nor skill-specific training but rather, general safety training applicable to all construction workers employed at sites requiring a Site Safety Plan.  The law’s primary sponsor intended such a broad application when he described the law as “specif[ying] certain training and qualifications requirements of the persons engaged in construction and demolition of certain buildings must meet.”[2]  Rather than promoting certain skills, the sponsor emphasized that LL196 is “about making construction safer.”[3]   

Embedding LL196’s general safety training requirements within §105-03’s skill- and trade-specific training regimes is simply misguided because the section’s existing provisions places unnecessary constraints to promote wider, general training. 

Chief among these constraints is the requirement that course providers be approved or licensed as an educational institution by the NYS Department of Education; accredited by the US Department of Education or the Council for Higher Education; or certified by an organization accredited by the American National Standards Institute.  Such accreditations and certifications will effectively limit training capacity to the existing universe of DOB-approved course providers and bar workforce development organizations, worker centers and other non-profits from providing safety training. 

Need to Expand Capacity

Of the 54 current DOB-approved course providers, only 21 are non-union and thus, open to any member of the public.[4]  But to meet the demands of the tens of thousands of workers who will need safety-training under LL196 or otherwise face exclusion from the industry, capacity must be expanded, particularly during the training phase-in period from March 1, 2018 to May 1, 2019. 

In this vein, employer-based (including both developers and contractors) training should be encouraged and allowed.  Permit holders (usually contractors or other agents of the employer) are already bound by Local Laws 204 and 206 of 2017 to provide pre-shift safety meetings and site-specific safety orientations, respectively.  The sessions, which are also required to be documented, could complement the general safety training envisioned by LL196.  It is commonly-accepted principle among the training community that the relevancy of training on-site for the particular task at hand only fortifies the trainee’s knowledge base. 

Employers should be allowed to either have their own construction management staff be certified as SST Training Providers or hire such providers to administer LL196 training to their employees.  As competent persons, construction forepersons are often delegated the task for leading tool box talks, pre-shift safety meetings and site-specific safety orientations.  Similarly, these persons should be allowed to provide LL196’s safety training curriculum under the supervision of a SST Training Provider.

Employer participation has always been part of the overall safety training regime as envisioned by the federal Occupational Safety and Health Act (“OSH Act”).  The OSH Act specifically states that the “employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.”[5]

Card Issuance and Verification

Sub-section (i) requires training providers to issue cards to workers upon completion of the course(s) and sub-section (j) requires that each provider maintain and make available to DOB and contractors, a secure on-line verification system of workers who complete the training.  However, DOB reserves the ability to designate a third-party to administer SST card issuance and verification which would relieve the training providers of such requirements.

It is imperative that DOB make this determination immediately.  Otherwise, training providers will need to coordinate among the larger provider community to insure that unique identification numbers are assigned, and that anti-forgery and fraud measures are uniformly adopted.  Furthermore, the on-line verification systems demanded of each provider could require significant IT upgrades particularly in the cyber-security sphere to protect sensitive data.

At the very least, perhaps the OSHA Region II office should be consulted and even contracted to provide such third-party administration.   The OSHA Region II, covering the New York metropolitan area, maintains a database of OSHA10 and OSHA30 training recipients within the Region and such training is the foundation upon which LL196’s additional safety training requirements are based.

Conclusion

As of this writing, LL196’s training requirements are in effect and yet, many contractors, construction workers and other industry participants are still learning about the new training requirements.  Tens of thousands of construction workers now require proof of training with additional requirements to be instituted later this year and the next.  Training needs to be expanded if these workers are to remain employed.

Without prejudice to our position that LL196 is illegal because it is pre-empted by the federal OSH Act, REBNY recommends that:

·         Requirements for SST Training Providers be placed in its own section of the Rules of the City of New York, unattached and unaffiliated to any provision of §105-03 of Subchapter E of Chapter 100 of Title 1;

·         To guard against the establishment of “fly-by-night” or fraudulent companies, SST Training Providers could undergo background checks, demonstrate membership with professional training institutes, or post bond with the City; and

·         Employer-based training should be permitted especially given that the OSH Act requires employer participation in employee training.

·         DOB immediately declare whether it intends to contract with a third-party administrator to issue SST cards and provide on-line.

* * * * *

March 8, 2018

Contact:               Carl Hum

                                General Counsel and Senior Vice President

                                (212) 616-5233

                                chum@rebny.com

 

[1] 1 R.C.N.Y §105-03(a)

[2] Construction Safety Act: Hearing before the Committee on Housing and Buildings, New York City Council, January 31, 2017, (Opening Statement by Councilman Jumaane Williams)

[3] Id.

[4] Department Approved Course Providers, https://www1.nyc.gov/site/buildings/industry/department-approved-course-provider-list.page (accessed February 21, 2018).  And of those 21 non-union providers, 16 are located within the five boroughs.

[5] 29 C.F.R. § 1926.21(b)(2)  2015