With Halloween right around the corner, what better time to blog about creepy, crawly things that go bump in the night? Or at least just bedbugs.
Infestations of blood-sucking bedbugs have become an increasingly difficult problem for hotels, home-owners, and yes—employers. Eradicating bedbugs has also become a big business that even includes dogs that are specially trained to determine whether an area is infested.
Although bedbugs definitely come with a high-level “ick” factor, are they really a workplace safety and health issue for employers? In some scenarios, the answer is “yes.” Consider the following scenarios, all of which are based on recent questions from actual clients:
1. Issue: Multiple employees at a large call center report receiving bites that are diagnosed as coming from bedbugs. Several employees file complaints with the Occupational Safety and Health Administration (OSHA) about this issue. The employer hires exterminators in an attempt to eradicate the bedbugs but has a hard time completely eliminating them. Why? The exterminator suggests that one or more employees may have infestations at home. The employer changes office furniture to eliminate many of the upholstered surfaces. The employer also informs employees of its efforts and offers suggestions about how to address potential infestations at home, but several employees start to insist that the employer should pay to exterminate their homes, which is an expensive proposition and could result in a slippery slope.
Advice: OSHA does not have a standard or regulation explicitly requiring employers to eliminate bedbugs. OSHA does, however, have a statutory provision commonly known as the “General Duty Clause” that requires employers to maintain a workplace that is “free from recognized hazards.” To prove a violation of the General Duty Clause, OSHA must show that a recognized hazard is in the workplace and that the employer failed to take all feasible steps to eliminate the hazard. Bedbugs are likely a recognized hazard—the bites are clearly uncomfortable, and infections requiring antibiotics are not uncommon. The issue will be whether the employer has taken all feasible steps by hiring an exterminator and informing employees about how to prevent home infestations. OSHA does not have jurisdiction over employee’s homes and is unlikely to demand that the employer pay for home exterminations.
2. Issue: An employee self-reports a bedbug infestation at home because she has to miss work to deal with the exterminator. Shortly thereafter, another employee at the worksite goes to the doctor with multiple bites. The employee denies that he has bedbugs in his home, and he insists that the bites came from work. The employer has no evidence to counter the employee’s claim. The employee contracts an infection that requires prescription medication.
Advice: OSHA’s Recordkeeping regulation, 29 C.F.R. Part 1904, requires employers to record all work-related injuries and illnesses that meet certain recording criteria on their OSHA 300 Logs. More specifically, a work-related injury or illness must be recorded if it results in death, or requires days away from work, transfer to a different job, or medical treatment, which is defined as including prescription medication. Here, the injury is clearly not the employer’s fault in that not much could have been done to prevent it. Nevertheless, OSHA considers the injury work-related because “but for” the employee’s presence in the workplace, it would not have occurred. As a result, the employer must record the injury on the OSHA 300 Log.
3. Issue: The CEO of a company is traveling to New York to attend a board meeting. She stays in a luxurious suite at a top-notch hotel, where she works in the evenings and also relaxes. Although her hotel suite is posh, she receives bedbug bites. She goes to the doctor and receives a prescription.
Advice: Even though the CEO is staying in a hotel suite, OSHA would consider this injury to be work-related and recordable on the OSHA 300 Log because medical treatment was provided. When an employee is on travel status, an injury is nevertheless considered work-related if the travel is in the interest of the employer. Because of the employee’s travel for the board meeting and work in the suite, the case would be considered work-related. If the CEO extended her stay to visit family or for some other personal reason and received the bites when the work portion of her trip was over, then the injury would no longer be considered work-related.
