The Scaffold Law Is Having Its Moment. What Reform Should — and Shouldn't — Look Like.

An opinion piece from MODRN Editorial · August 27, 2026

Every few years, the Scaffold Law has its moment. Contractors and business groups line up in favor of reform, trade unions and the plaintiffs' bar line up against, and Albany decides — again — not to move. This year the moment is different, because the fight has moved to Washington. In June, U.S. Rep. Nick Langworthy of New York introduced H.R. 3548, which would exempt federally-funded projects in New York from the state's Scaffold Law, and AGC of New York State's president Mike Elmendorf has publicly said the industry expects to see it move as part of the coming federal surface-transportation reauthorization.

This is a policy fight where MODRN's audience — contractors, MWBEs, GCs, and public-agency partners — has real skin in the game. Below is our read on what the law actually says, why the argument for reform is legitimate, why the argument against reform is also legitimate, and what a defensible middle ground looks like. This is opinion, not endorsement; we quote publicly stated positions accurately and let you make your own call.

What the Scaffold Law actually is

New York's "Scaffold Law" is shorthand for Labor Law §240 (and its companion §241), first passed in 1885 and repeatedly reinterpreted since. In the modern doctrine, when a construction worker is injured by a gravity-related hazard — a fall from height, an object falling from above — the owner and the general contractor are held to what New York courts have described as absolute liability. Unlike almost every other state, the injured worker's own actions (including violation of safety rules, drug or alcohol use, or ignoring supervisor instructions) generally do not reduce the owner's or contractor's liability. New York is the only state in the country that still applies this doctrine to construction cases.

That is not a nitpick. In every other state, gravity-related injury claims are decided under some form of comparative fault — the worker's own conduct is weighed against the owner's and contractor's failures. In New York, it isn't. On a covered claim, if the injury falls within the statute's reach, the plaintiff wins the liability question and the case becomes about damages.

That framing is what powers both sides of the current argument. Supporters of the law say absolute liability is exactly what makes safety enforceable — it removes the incentive for owners and contractors to blame the worker. Opponents say it disconnects liability from actual conduct, which distorts insurance markets, drives up the cost of every construction project in the state, and hits public work especially hard.

The industry's argument for reform

The trade-association case for reform, as stated publicly by AGC of New York State and its president Mike Elmendorf, rests on two claims. Both are contestable, and both deserve to be examined on their merits rather than dismissed.

The first is a fairness argument. Elmendorf has framed it plainly: "It treats the unscrupulous contractor, if they end up in court, the same way as the contractor who does everything right. That's wrong." A general contractor with clean safety practices, current SST cards, functioning fall-protection programs, and documented pre-task planning is legally in the same position as one that does none of the above, the moment a covered claim lands. Any framework that collapses the distinction between a firm that invests in safety and one that doesn't is a framework that, over time, punishes discipline.

The second is a cost argument, and this is where the industry's data lives. Publicly reported figures — always worth confirming against current market data before quoting a specific project — indicate that general-liability insurance in New York runs meaningfully higher than in comparable states. AGC has claimed the Scaffold Law added more than $200 million to the budget of the Mario Cuomo (Tappan Zee) Bridge replacement, and trade reporting suggests premiums in New York can run roughly 30 percent higher than in other states for the same coverage. Reform advocates argue that reducing premiums by even a modest percentage would translate into meaningful public-work savings across the state's capital pipeline.

You do not have to endorse every number in that stack to see the underlying point. Public agencies in New York — SCA, MTA, DDC, NYCHA, DASNY, Port Authority, NYSDOT — are paying, in every bid, for a legal doctrine that no other state's public agencies pay for. That is a real transfer of public money away from actual construction and into insurance and litigation reserves. The question is whether it buys enough safety to justify the cost.

The safety argument for keeping it

The other side of the argument is also serious, and we won't caricature it. Worker-safety advocates and the plaintiffs' bar argue that absolute liability is precisely what has driven New York's fall-protection culture forward. In a public statement summarized in trade reporting, a New York plaintiffs' firm — Leitner Varughese Warywoda — argued that by holding owners and contractors strictly liable for elevation-related hazards, the Scaffold Law "creates a powerful incentive to invest in safety," and that diluting the law would reverse "safety gains of recent years" and put workers at "even greater risk of injury."

There is a defensible core to that claim. Construction is the second-most dangerous major industry in the United States by fatal injury rate. Falls from elevation are the largest single cause of construction fatalities. Any policy change that reduces the legal incentive to prevent them deserves scrutiny, not sloganeering. If Albany or Washington strips liability without simultaneously strengthening enforcement — Local Law 196 hours, SST discipline, DOB oversight, OSHA-region inspections — the risk that some contractors under-invest in fall protection is real, not rhetorical.

The uncomfortable truth is that the debate is not "safety vs. cost." It's a debate about which mechanism enforces safety most effectively. A firm doing $50 million a year in NYC public work already carries safety costs that dwarf its Scaffold Law premium — SST training for every worker, mandatory site-safety plans, third-party fall-protection inspections, superintendents on-site full-time. The Scaffold Law is one incentive on top of a stack of many. Whether removing that top layer meaningfully changes behavior is exactly the empirical question the current debate is dancing around, and neither side has produced a defensible answer to it.

The federal move: H.R. 3548 and the surface-transportation vehicle

The most concrete piece of the current reform push isn't at the state level; it's at the federal level. H.R. 3548, introduced by Rep. Langworthy, would carve out federally-funded projects in New York from the Scaffold Law's reach. AGC-NY has publicly stated the bill is most likely to advance as part of the federal surface-transportation reauthorization — the successor to the Infrastructure Investment and Jobs Act, which expires in 2026.

That's a narrow, targeted move, and it's worth being honest about what it does and doesn't do. It would not repeal §240. It would not change how the law applies to private projects, to state-funded projects, or to the vast majority of New York's construction market. What it would do is exempt federally-funded projects — meaning bridges, transit, and roadwork paid for through federal formula programs and infrastructure grants — from a legal doctrine that Congress could plausibly argue is a state-specific tax on federal infrastructure dollars.

Whether that carve-out is good policy depends entirely on the answer to the empirical question above. If federal-project safety outcomes track private-project outcomes closely, the exemption is defensible on cost grounds. If federal-project outcomes diverge — if fall injuries increase measurably after the exemption takes effect — then the safety advocates are right and the carve-out was a mistake. Neither side has been particularly rigorous about specifying, in advance, what would count as evidence of success or failure. That is a problem.

Our read: reform, yes — but shape it deliberately

MODRN's position is not "the Scaffold Law is bad, get rid of it." It is not "the Scaffold Law is sacred, don't touch it." It is the position that a well-run firm has to take on any policy question that affects its cost structure: the current framework is measurably distorting public-project costs, the reform proposals on the table are not automatically the right answer, and the industry can and should be specific about what a defensible middle ground looks like.

Three principles we'd expect any serious reform to satisfy:

• Absolute liability should give way to comparative fault, not to no liability. The point of comparative fault — the doctrine every other state uses — is not to let owners and contractors off the hook. It's to weigh the worker's own conduct against the owner's failures, so a firm that invests in safety gets recognized for it and a firm that doesn't gets punished. Replacing §240's absolute-liability doctrine with a comparative-fault framework preserves the incentive to invest without inflating premiums for firms that already do.
• Reform should be coupled to safety-enforcement strengthening, not offered as a standalone rollback. If §240 is a top layer of the safety incentive stack, then the layers below it — Local Law 196 SST hours, DOB special inspections, OSHA regional enforcement, third-party fall-protection oversight — should be reinforced as the top layer thins. Any reform bill that reduces liability without adding enforcement teeth is a bill worth opposing.
• Reform should specify success and failure conditions in advance. If federally-funded NY projects are exempted from the Scaffold Law under H.R. 3548 or its successor, the sponsors should be willing to specify what fall-injury outcome would trigger re-evaluation. "We think this will improve things" isn't a policy — it's a bet. A serious bill states its own sunset triggers and its own performance metrics. If it doesn't, it isn't serious.

None of that is glamorous, and none of it is on any bill currently in the hopper. It is what the industry should be asking for if the industry wants to be taken seriously as a partner in the policy debate rather than a lobbyist.

What it means for NYC and NYS contractors right now

The practical takeaway for firms bidding public and private work in New York, whatever happens in Congress:

• Don't reprice your Scaffold Law premium into your bids yet. H.R. 3548 is a proposal, not law. The current framework is what governs the projects you're bidding today. Reform is a several-quarter horizon at the earliest and could easily stall.
• Keep documenting safety like it will matter in litigation — because it does. Even under absolute liability, the difference between a firm that keeps clean pre-task planning, JHAs, fall-protection inspections, and daily safety records and a firm that doesn't is the difference between a defendable case and a collapse. Documentation discipline pays whether or not the doctrine changes.
• Track the debate seriously. If the surface-transportation reauthorization carries a Scaffold Law carve-out into law, insurance markets will move within a quarter. Firms bidding federally-funded work in that window will need to reprice, and firms that were counting on Scaffold-Law-related settlements as part of their case pipeline will need to adjust.
• Watch what New York State does in response. A federal carve-out only for federally-funded projects would create a two-tier system inside New York — one legal regime for federal projects, another for state and private. State legislators may respond by either mirroring the federal reform or by hardening the state doctrine to compensate. That downstream fight is where the real long-term stakes are.

The bottom line

The Scaffold Law is having its moment because the current push has finally found a lever — a federal carve-out — that doesn't depend on Albany. That's a real change in the mechanics of the debate. But the underlying question hasn't changed: is absolute liability a necessary safety incentive, or is it a state-specific tax on construction that hasn't been re-evaluated in a generation? Both sides have strong intuitions and weak evidence. That is exactly the condition under which a serious policy answer requires more specificity than either advocacy camp has offered so far.

MODRN builds and supports NY public and private construction for a living. We want workers going home safely and we want public dollars spent on projects rather than premiums. Those goals are not incompatible; they just require better policy than the current fight is producing. If your firm wants a partner who thinks carefully about the mechanics of how construction actually gets bid, insured, built, and defended, get in touch or see what we do.

Editorial note: This piece is opinion. Publicly stated positions from AGC of New York State, Mike Elmendorf, U.S. Rep. Nick Langworthy, and the law firm Leitner Varughese Warywoda are quoted or paraphrased from trade reporting and are not independent assertions by MODRN Inc. Specific insurance premium figures, project cost claims, and legislative timelines cited in this article reflect publicly reported industry claims and should be verified against current market data or the actual bill text (H.R. 3548, 119th Congress) before relying on any specific number in a bid, contract, or legal filing. This article is not legal, insurance, or lobbying advice.

Featured image: The Kosciuszko Bridge replacement under construction, New York City (2017). Photo by Jim.henderson via Wikimedia Commons, CC BY-SA 4.0. Used unmodified.