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Vigilant Communication Can Help Avoid Claims

October 26, 2010
Related Topics: Health and Wellness, Featured Article, HR & Business Administration

Bedbugs typically feast on their victims while they sleep, but they are starting to turn up in some nontraditional places, including offices, which some lawyers say could lead to a workers’ compensation claim.

Bedbugs in the workplace can cause disruption and the issue can pose challenges to employers, experts say.

With bedbugs spreading into areas beyond hotels and homes, employers may wind up facing them in their offices. And it is likely the bugs were spread by their own employees.

According to the U.S. Occupational Safety & Health Administration, employers have the obligation to maintain a safe workplace, including preventing “the entrance or harborage of insects.” And while there are no standards on how employers should deal with a bedbug infestation, legal and pest control experts agree it is best to address the threat of an office invasion before it happens.

“We’ve had quite a few questions about how to handle (bedbugs) in the workplace from employers,” said Richard Greenberg, a New York-based partner with Jackson Lewis LLP who specializes in labor law and preventive practice issues. “We try to give them some commonsense advice on how to deal with them, but there is no real legal guidance when it comes to bedbugs. … It’s difficult to find someone at fault.”

Bedbugs can hitchhike from one location to another through items such as luggage or clothing, so employers face the threat that they could wind up in their office.

If bedbugs make their way into the workplace, it is highly likely an employee unknowingly brought them in, pest control experts said. Although the employer is not at fault, an employer that does not address the bedbug issue once it’s found—either by an employee or through the employer’s investigation—could be held liable if bedbugs found their way into an employee’s home, Greenberg said.

Further, a workers’ compensation claim could be filed if an employee were bitten by a bedbug while on the job, Greenberg said. The bug causes a red, itchy welt that could be determined to be a physical injury, and the idea of being bit at work by bedbugs could create a psychological issue.

“I have not personally seen a workers’ compensation claim related to bedbugs, but bedbugs could certainly fall under the workers’ compensation benefit,” Greenberg said.

Yet a workers’ compensation claim would be a bit of a “stretch,” said Charles Kelley, director of sales-special markets in charge of risk management at Outrigger Enterprises Inc. in Honolulu.

“It would take too long for the claim to go through the workers’ compensation system and you wouldn’t be able to prove (the employer) is at fault,” he said. “It’s just not practical.”

To mitigate a bedbug problem before it begins, employers can educate their employees about bedbugs and their characteristics, said Michael Batenburg, president of New York-based fumigation consultants Bed Bugs and Beyond Consulting and Treatment Specialists.

“Education should be proactive and immediate,” Batenburg said, adding that employers can do this through e-mail, an on-site seminar with a consultant, traditional mail or internal websites or message boards.

If an employee brings bedbugs in from home, he or she should be sent home immediately, legal and pest control experts said, however both agreed there is no set protocol for that situation.

An employee cannot be fired due to a home bedbug infestation that may require the employee to miss work until the issue is resolved, said Robert Buch, Los Angeles-based partner with Seyfarth Shaw LLP who specializes in workers’ comp law.

Greenberg agreed with Buch, adding that those employees would be protected under the Family & Medical Leave Act. FMLA also could apply to employees with psychological problems due to bedbugs.

“People want to say bedbugs aren’t a health issue, but that’s not accurate,” Batenburg said. “People that experience bedbugs suffer from sleep deprivation … their mental state is compromised.”

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