For years many legislators and advocates in New York have pushed for legalization of adult use cannabis and with the state in need of new revenue sources, as well as neighboring New Jersey legalizing marijuana, it is only a question of when not if New York will pass legalization.
As negotiations continue regarding the legalization of marijuana, there is a growing concern related to New York’s antiquated Scaffold Law, which places absolute liability on employers for gravity-related injuries. While typically related to issues within the construction industry, the law can be applied to other industries, like trucking, such as if a driver were to fall off a flatbed trailer. As such, a diverse group of business interests* released a letter to New York’s leadership asking that Scaffold Law reform be included in Cannabis legalization.
The letter reads in part:
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.
Certainly, from the trucking perspective, highway and road safety is paramount. According to a 2018 report from the Insurance Institute for Highway Safety, states that have legalized marijuana have seen an increase in crashes due to impaired driving (IIHS). Education is a vital component in reducing impaired driving and in this case many advocates for legalization do a disservice. By constantly claiming that it is not as harmful as alcohol, many drivers get a false idea that driving while high is not dangerous. The Colorado Department of Transportation has put a great deal of time and resources into their educational campaign called Cannabis Conversation, they discovered that a staggering 55 percent of marijuana users felt it was safe to drive while high. Another huge roadway issue especially as compared to alcohol is that, unlike alcohol, there is currently no way to test for impaired driving roadside (there are hair, blood, urine, and saliva tests but currently they are not effective roadside). Worse, marijuana can stay in a person’s system for up to 30 days, but effects do not last that long, so roadside testing logistics aside, it is difficult to test for impairment.
*Note: NewYorkTruckStop.com publisher Zach Miller sits on the board of directors of the Trucking Association of New York (TANY), one of the groups which signed the letter.