2004: Structural Work Act

Summary: In 2003, many legislative observers anticipated an effort to create the so-called “Construction Safety Act,” which would essentially reinstate the Structural Work Act (“SWA”) repealed in 1995.

Background: Enacted in 1907, SWA (also referred to as the Scaffolding Act) provided compensation to employees injured in falls from scaffolding. Four years later, in 1911, the Illinois Workers’ Compensation Law established a more comprehensive employee compensation system for workplace injuries.

Workers’ Compensation was considered to have superceded SWA, and SWA was dormant until the 1950s when an Illinois court decision struck down a provision that prohibited third-party lawsuits. From that point until its repeal in 1995, a worker could collect benefits under Workers’ Compensation and then file suit under SWA against each party involved in the project regardless of fault, including owners, suppliers, contractors, subcontractors and designers. In addition, the courts broadly interpreted SWA to apply beyond scaffold-related injuries.

In 1995, the 1907 SWA legislation was repealed, eliminating this dual system of strict liability, and making Illinois like 48 other states that rely on Workers’ Compensation laws to provide a single, no-fault means of recovery for workplace injuries. The 1995 repeal kept in place the ability of injured workers, even while recovering under Workers’ Compensation, to pursue tort actions in court against any defendant based on fault.

The AHEAD Coalition brought together over 60 different organizations to oppose the reinstatement of a Structural Work Act. This alliance focused on the impact that such legislation would have on the economy vitality and employment of Illinois (hence the name AHEAD: Alliance to Help Employment And Development). The following are among the arguments which AHEAD advanced to prevent SWA legislation:

• SWA Threatens Illinois Jobs. SWA will increase construction costs and stifle private investment and public works projects. It will disadvantage Illinois relative to neighboring states where the cost of doing business in the construction industry is significantly lower, eventually costing the State jobs, tax revenues, construction growth and economic growth.
• SWA Does Not Increase Worker Safety. Since the repeal of SWA in 1995, the number of construction jobs in Illinois rose 25%, from 211,000 in 1994 to 265,000 in 2000. During that time, construction site fatalities declined as a percentage of construction workers, from 20 deaths in 1994 to 14 in 2000.
• SWA Costs Consumers. It has been estimated that SWA cost Illinois employers approximately $170 million a year in insurance costs and the legal fees alone related to defending third-party suits. It can often cost an uninvolved party tens of thousands of dollars in legal fees just to be removed from the case. These costs are passed on to all consumers.
• Workers Maintain the Right to Sue Without SWA. Even without SWA, workers still have the right to go to court, but now must prove negligence against the defendant for the accident.