The Problem with New York's Mold Laws

Hats off to Daniel Stih, BSE, CMC, CIEC! I’m a lawyer but I really could not have explained the problems with New York’s mold laws better than he did in his recent podcast episode of Mold Money (Mr. Stih also has a great book by the same name). Listen to the podcast at Apple Podcast /Spotify Podcast.

The way New York’s law is written actually hurts consumers, rather than help consumers.

NY Labor Law § 930(2)¹ defines mold as “any indoor multi-cellular fungi growth capable of creating toxins that can cause pulmonary, respiratory, neurological or other major illnesses after minimal exposure, as such exposure is defined by the environmental protection agency, centers for disease control and prevention, national institute of health, or other federal, state, or local agency organized to study and/or protect human health.”

The problem? Most mold is not multi-cellular, as explained by Mr. Stih, such as aspergillus/penicillium. New York’s law essentially gives mold inspectors and remediators a free pass to not do anything about these types of molds. This is why a more simple definition is warranted.

Additionally, some molds can cause health problems that are not pulmonary, respiratory, or neurological in nature that may not necessarily be “major”. The law does not define what “major illness” is. For example, as Mr. Stih points out, another problem with the definition of mold is the way the law is written, it excludes the allergenic potential of mold. Also, I don’t think the law takes into account the potential for long-term effects of mold. The reason why we do not have more studies on the effects of mold as well as other toxins (naturally occurring poisonous substances) and toxic chemicals (poisonous substances that are generally made by synthetic means) - together termed toxicants - is no one is going to volunteer for a study for something that may result in harm. We have studies on drugs because people are willing to volunteer for a test for something that may benefit them. (This is why I go apesh*t when other lawyers say there are no studies saying…so there are no grounds for a lawsuit…I suppose I actually should be happy by their ignorance as it means a potential client lost for them and a potential client for me!)

The only thing I disagree with Mr. Stih with is despite my libertarian leanings, I do think we do need laws concerning mold, albeit, I am a lawyer and not a rocket scientist! However, I think laws not just about mold, but all laws, should be simple, as I expressed in my recent article on the proposed Ohio law.

In fact, there are provisions of the law that I like, such as the mold inspector cannot also be the remediator and no one can have an interest in both parties. See NY Labor Law § 936.

Another part of the law I don’t like as it could harm workers - per NY Labor Law § 946(2) it states “If a mold abatement licensee specifies […] that personal protection equipment (PPE) is required for the project, the mold remediation licensee shall provided the specified PPE to all employees who engage in reediation activites”. First, PPE should always be provided for remediators, in my opinion. Secondly, the law uses the term employees rather than workers, laborers, etc. meaning that if a remediator licensee subcontracts the work, than PPE is not required. This is harmful. (The good news is subcontractors in New York in some situations can sue the general contractor for injury on the job - it’s a carveout from the worker’s comp law barring them from recovering more than just actual compensation for their injuries.)

As Mr. Stih points out, another problem with the law is NY Labor Law § 947(1), which proscribes that a mold remediation project is considered complete when the work proscribed by the remediation plan is complete and “the work area is free from visible mold” as the problem is not all mold may be visible.

The City of New York’s Additional Laws

In New York City, the Asthma Free Housing Act (Local Law 55)² also provides for more laws - and I would say more problems.

Before even reading the text of the law, I already observe a problem in the introduction of the law: “To amend the administrative code of the city of New York, in relation to indoor asthma allergen hazards in residential dwellings and pest management” - the problem being asthma and allergies are distinct problems.

Additionally, § 27-2017.1 of the law provides an onerous duty on landlords - “An owner of a dwelling shall take reasonable measures to keep the premises free from […] indoor allergen hazards and from any condition conducive to indoor allergen hazards”. Taken literally, this could mean a landlord is required to clean people’s apartments because dust could grow in the apartment, as some people are allergic to dust and mold can grow on dust. I don’t know about you, but I wouldn’t want my landlord to come over at 5 a.m. on a Saturday morning and blast music while cleaning my apartment.

§ 27- 2017.3 of the law is a problem to me because it essentially allows a landlord to be off the hook for mold present on tile or grout. In seeking to interpret the meaning of the law, I think the writers wanted people to be responsible for mold growing in their bathroom, but the problem is that there could a leak in the bathroom that is not the renter’s fault that causes mold and the landlord should be responsible for taking care of problems such as leaks in a person’s apartment.

Under § 17-199.6 of New York City’s law, healthcare providers, with patient consent, may request the Department of Health to investigate “possible indoor allergen hazards in dwellings” where people with “moderate persistent or severe persistent asthma” reside. Again the problem is that mold can cause many other problems apart from asthma.

As stated above, not all mold is visible, so it’s problematic that § 27-2017.5(a) of New York City’s law requires only remediation for visible mold in a unit before renting it. While by common law a landlord has a duty to provide a habitable unit to a renter, which requires the landlord to remediate any mold, there is no common law fine for violating such as New York City’s law provides, and the part of fining slum landlords I do like.

In sum, as with the propoposed law in Ohio, if we had more simple definitions, they would actually help people more than hurt them. The way New York’s laws are now do not provide as much liability for slum landlords and bad businesses as they could - and should.

1. You can read the law yourself at https://dol.ny.gov/mold-law-nysdol

2. You can read the law yourself at https://www1.nyc.gov/assets/buildings/local_laws/ll55of2018.pdf