Third of four parts
When bedbugs invade your office, factory, or other building, they aren’t the only pests employers will be feverishly wanting to get rid of. The other dreaded workplace pestilence — plaintiffs’ attorneys — may not be far behind, scratching around for an opportunity to file bug-related litigation for any number of reasons. As with the bedbugs themselves, you may not know you have a problem until it’s too late.
Employer liability for bedbugs of course begins with the Occupational Safety and Health Act’s (OSHA) General Duty Clause and the OSHA regs, which declare that “every closed workplace shall be so constructed and maintained to prevent the entrance of vermin,” which naturally includes bedbugs. But the liability doesn’t end there. Building codes and state laws can add more requirements to keep your premises safe. New York City, site of many well-publicized recent infestations, now even has a Bedbug Advisory Board.
If your company is subject to OSHA’s recordkeeping requirements, you may need to report any illnesses or injuries that are significant or meet other recording criteria, and are caused by bedbugs at work, says attorney Susan Gross Sholinsky with Epstein Becker & Green, P.C., in New York City.
“If an employee tells [Occupational Safety and Health Administration (OSHA) agents] about [an infestation] or they hear about it from the media, OSHA may send a letter to the company to ask about the problem,” Sholinsky adds. “But don’t panic — they just want to know what you’re doing to resolve the problem. They don’t have time to chase down every bedbug case.” In this regard, employers will likely want to document where the bedbugs were found as well as what was done to fix the problem.
In a recent audio event for HRHero.com, Sholinsky highlighted other ways that employees and their attorneys will try to find cracks or crevices in employers’ legal defenses when it comes to bedbugs:
- Don’t try to silence employees about the problem. “It could cause a whistleblower issue. Also, it could bring on claims regarding protected concerted activity,” she says.
- Don’t play the blame game, which could trigger a defamation claim. In other words, don’t single out anyone for causing the bedbug problem.
- Don’t retaliate. Tell supervisors not to punish anyone they think might have brought the bugs onto the premises.
And that doesn’t even begin to consider the raft of wage and hour (should employees on bedbug leave be paid?) and Family and Medical Leave Act (FMLA) issues that could arise during an outbreak. Workers’ comp also may come into play, Sholinsky says.
“Does your bedbug policy have a disparate impact on certain employees? Can you fire an employee for off-duty conduct, for example, having a bedbug collection? Be careful about this,” she adds.
That’s because the plaintiff’s bar can be very creative. With bedbug litigation, they have only just begun to scratch the surface.
Coming Thursday: Should you pay someone to treat an employee’s home for bedbugs?
“Bedbugs at Work? Guard Against Lawsuits, Productivity Threats,” a 90-minute audio event featuring University of Kentucky entomology professor Michael F. Potter and Epstein Becker Green attorney Susan Gross Sholinsky, is available on CD or via live streaming.
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HR Hero Line is a weekly e-zine for human resources and business professionals featuring news and analysis on HR and employment law from members of the Employers Counsel Network and select experts in HR and employment law. HR Hero Line is published by M. Lee Smith Publishers.