Bed Bugs in the Bed Bugs in the WorkplaceWorkplace

The material provided herein is for informational purposes only and is not intended as legal advice or

counsel.

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BED BUGS

Bell Environmental Services

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Bed Bugs

►Blood feeders►Common in U.S. before WWII►Comeback due to:

Changes in pest control practices Increased international travel

►Hitchhike in belongings►Not known to transmit diseases

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Insecticide at hotel killed NZ tourist in Thailand

►"I think she has been killed by an overzealous sprayer who's been acting on the instructions of the hotel owner to deal with bed bugs," Dr McDowall said.

►Even a slight mistake in the dosage of chlorpyrifos, which has been banned for indoor use in many countries, could be lethal, he said - Otago Daily Times May 9, 20111

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Bed Bugs

►Hotels►Apartments & houses►Hospitals & nursing homes►Schools►Office buildings►And spreading to...

Modes of transportation Movie theaters

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Bed Bugs

►¼ inch►Reddish brown►Oval, flat►Sometimes

confused with cockroaches or ticks

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Compare

Bed Bug German Cockroach

Nymph

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Compare

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Compare

Bed Bug Tick

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Bed Bug Feeding

bedbugfeed.wmv

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Bed Bug Bites

►Appearance depends upon sensitivity of person

►No diagnosis without specimen

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Example of bites

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Bed Bug Habits

►Flattened bodies make them good hiders

►Prefer to hide in seams, cracks and crevices close to where people sleep or spend majority of their time

►Hiding areas marked with fecal spots (dried blood)

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Mattress & Box Spring

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Infested furniture and beddingUnderside of mattress tag

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Mattress & Box Spring

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Furniture

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Furniture

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Dorm room lockersTransmittal through exposure

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Infestations on Cruise ShipsHeadboard Panel

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Infestation Sites

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Bed Frames

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Furniture

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Bed Frames

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Prevention Early Detection

The best approach is to catch bed bugs at the early stage of an

infestation

Know the Signs!

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Prevention?

►There is no way to prevent bed bugs from infesting a room

►Encasements can prevent them from infesting mattresses & box springs

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Bed Bug Signs

Stages of an Infestation

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Early Detection

►Be mindful of where you place your belongings

►Inspect your belongings when you return from traveling

►Inspect used furniture and other used items before bringing indoors

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Early Detection

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Early Detection

►Dog inspections Quick & over 90%

accurate Ideal for multi-unit

buildings Can limit

treatment areas

Roscoe

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Preparation

►Prep List – What to do with clothing, toys, books, etc.

►Treatment success depends largely upon how well an area is prepared

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Preparation

►Do not move infested items to uninfested areas unless sealed in plastic bags

►Do not move patients or tenants to uninfested locations until they and their belongings have been inspected and dealt with properly

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Preparation

►Normal wash cycle with hot water will kill all bed bug stages

►Running clothes or items through the drier for at least five minutes at most settings is also as effective

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Treatment►Cryonite®/

Instant-Freeze Dry ice “snow” Pesticide free

contact kill No residues –

immediate reoccupation

Ideal for sensitive environments & electronics

Statutes, Case and Recent Legislative Developments

By: Michael T. Reilly

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Relevant New York State and New York City

StatutesA. New York State

– Multiple Dwelling Law § 78(1) Repairs• Landlords are responsible for maintaining

multiple dwellings in good repair– Real Property Law § 235-(b) Warranty of

Habitability• Implied warranty in every residential lease that

an apartment is fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety

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Relevant New York State and New York City

StatutesB. New York City Statutes

– New York City Administrative Code § 27-2018. Notice of Bed Bug Infestation History

• Residential landlords required to provide new tenants before signing a lease with a disclosure form containing the history of infestations within the apartment to be rented and within the building

– New York City Rules and Regulations Title 16 Article § 1-04.1 Department of Sanitation Mattress Disposal Rule

• Any person disposing a mattress or box spring for collection by the Department of Sanitation is required to enclose the mattress or box spring within plastic bag

• Fine of $100.00 for non compliance

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Residential Real Estate Cases

A. Zayas v. Franklin Plaza, 23 Misc. 3d 1104(A), 2009 WL 909664 (N.Y. City Civ. Ct. 2009)

– Residential cooperative tenant sues landlord for negligence for infestation caused by building wide bed bug infestation

– Court determines landlord was on notice and took no steps to remedy the condition

– Tenant awarded damages for loss of personal property and cost for medical treatment, denied cost of exterminators hired by tenant

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B. Bender v. Green, 24 Misc. 3d 174, 874 N.Y.S. 2d 786 (N.Y. City Civ. Ct. 2009)

– Breach of warranty of habitability found where bed bugs were present in rent stabilized apartment, residential tenant entitled to 12% rent abatement for infestation

Residential Real Estate Cases

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C. Ludlow Properties v. Young, 4 Misc. 3d 515, 780 N.Y.S.2d 853 (N.Y. City Civ. Ct. 2004)

– Breach of warranty of habitability found where bed bugs were present in rent stabilized apartment, residential tenant entitled to 45% rent abatement for infestation

Residential Real Estate Cases

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Commercial Real Estate Cases

A. Clark v. Beacon Capital Partners, 2011 WL 1480873 (N.Y. Supp 2011)

– Employee of major news network and her husband sue commercial landlord, property manager, and building cleaning service entities for alleged bed bug related injuries.

– Employee alleges defendants negligent in allowing leased premises to become infected with bugs, failed to warn of infestation and failed to remedy the problem.

– Employer hires pest company to investigate workplace and homes of employees. An employee who shared desk space with the Plaintiff is found to have excessive amounts of bed bugs, spiders and roaches in his apartment.

– Court notes, “this is the first lawsuit brought by a tenant’s employee against a commercial landlord and its agents.”

– Court finds reliance on statutes designed to protect tenants of residential dwellings is not applicable in the commercial context.

– Court finds no contractual relationship between defendants and Plaintiff, the only remedy available to injured employee is workers compensation

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A. New York State Assembly Bill A1482 & New York State Senate Bill S1286

– Tax credit for personal property replacement up to 15% of cost, not to exceed $750 for bed bug infestation

B. New York State Assembly Bill A1482– Provides for sanitation of every used mattresses or

bedding material transported, stored or sold in the state

C. New York State Assembly Bill A5177– Provides for notice of bed bug infestation for cities

less than one million

Recent Proposed Legislation

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D. New York State Assembly Bill 6074– Require that every hotel for cities less than one million

shall protect all mattresses and box springs with bedbug-impermeable covers

E. New York State Assembly Bill A5304– Permits landlords to inspect dwellings and exterminate

upon reasonable noticeF. New York State Assembly Bill A5524

– Requires safety measures to be taken in the transport, transfer and storage of used bedding when bought and sold to commercial establishments including hotels

G. New York State Senate S358– Provides for the sanitization of used mattresses before

moving, storing or sale

Recent Proposed Legislation

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NYC Bed Bug Advisory Board Report

A. Education, Awareness and Early Detection

– Take a proactive approach to public education and awareness

– Provide bed bug training to stake holders

– Launch and maintain an on line Bed Bug Portal devoted to bed bug facts

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B. Treatment and Remediation– Establish protocols for proper disposal of

infested items– Develop suggested minimum pest

management practices– Create guidelines for the donation of used

and second-hand items– Develop triage approach for immediate

response– Offer guidelines for self-remediation

NYC Bed Bug Advisory Board Report

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C. Monitoring and Policy– Assemble a Bed Bug Team, headed by a qualified

entomologist or equivalent professional and support staff, to coordinate City wide bed bug efforts in conjunction with a Bed Bug Working Group

– Develop integrated monitoring, tracking and reporting tools– Improve the Department of Housing Preservation and

Development bed bug infestation protocols and code enforcement capacity

– Increase the capability of New York City Housing Authority to take a proactive stance in preventing and addressing bed bug infestations

– Evaluate current housing court procedures as they relate to both landlords and tenants and look for methods to compel compliance and access to ensure effective bed bug management

NYC Bed Bug Advisory Board Report

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C. Monitoring and Policy– Utilize Article 151 of the New York City Health Code to

help overcome obstacles associated with bed bug management in buildings with wide spread infestations

– Require landlords to provide written bed bug information to tenants upon lease signing and renewal

– Disseminate consumer warning about bed bugs risks from used furniture and mattresses

– Encourage small businesses and social enterprise start-ups to provide bed bug preparation for low and moderate income households.

NYC Bed Bug Advisory Board Report

Are You Covered?Insurance Coverage for Bed Bug Infestation and

Related Claims

By: Danielle DeFilippis

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Who Pays the Bill?• Will insurance cover the costs of

bed bug treatment?• Will insurance cover replacement

of property destroyed by bed bugs?• Will insurance provide benefits to

injured employees?• Will insurance cover the cost of

defending litigation?

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What Are Your Potential Costs?

• Remediation• Replacement• Loss of business• Injury to employees• Compensation to tenants or guests• Costly litigation• Settlements

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Types of Insurance Coverage

• Homeowners• Renters• Workers Compensation• Commercial General Liability• Commercial Property• Business Owners/Business

Interruption

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First Party Property Insurance

• The first place you might look is to coverage you obtained for your home or property you own

• Types of First-Party Coverage– Homeowners– Renters– Commercial Property Coverage

• Are you covered? No.

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Homeowners Coverage• Homeowners insurance policies typically provide coverage

for:

• Dwelling– The dwelling on the “residence premises”

• Other Structures– Other structures on the “residence premises” set apart

from the dwelling by clear space– This includes structures connected to the dwelling by only

a fence, utility line, or similar connection

• Personal Property– Personal property owned or used by an “insured” while it

is anywhere in the world – Personal property owned by others while the property is

on the “residence premises” occupied by an “insured”

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Common Policy Exclusions

• Homeowners & Commercial Property policies typically exclude coverage for loss caused by:

– “Birds, vermin, rodents, or insects”; or

– “nesting or infestation, or discharge or release of waste products or secretions, by insects, birds, rodents or other animals”

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Insurance Industry Perspective

• The cost of getting rid of bedbugs, like other vermin, is considered part of the maintenance associated with owning a home and generally is not covered by standard homeowners and renters insurance policies

• Most standard commercial property insurance policies also have vermin exclusions for infestation

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New York Legislative Action• Proposed legislation in the 2011 session

• Bill No. S4926 introduced by Senator Jeffrey D. Klein• Mandates that no property/casualty insurance policy shall be

issued unless it contains in substance the following provisions:– For insurance policies issued or issued for delivery on a risk to

property zoned, for residential use, in whole or in part, a provision providing for optional coverage whereby the insurer shall pay the costs associated with the treatment of bedbug infestations at the insured property, including all costs for extermination services; costs for cleaning of the insured property and of personal property located at the insured premises including the dry-cleaning of clothing and bedding; and the cost of replacing items which are not able to be treated or cleaned including, but not limited to, mattresses or furniture

– The provisions of this subsection shall apply to all homeowners, renters, and condo/co-op unit insurance policies issued in the state

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Third Party Liability• Coverage may be available for

damages to third parties, i.e., third party liability

• Potential third party liability– Lawsuits by tenants– Injury to employees or relatives– Claims by hotel guests– Damage to the property by others– Defense costs for lawsuits– Settlements/Judgments

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Potential Exposure for Third Party Claims

• Lawsuits are costly to defend• Many recent bedbug lawsuits seek large damage

awards– Chicago plaintiffs seek $382,000 in punitive and

compensatory damages– An opera singer files lawsuit against hotel for $6 million– A Virginia plaintiff sues hotel for $100,000 for medical

treatment for her son– A Tennessee plaintiff sues a Rent-a-Center for $575,000

claiming furniture was infested– A Chicago woman sues a New York hotel for $20 million– $186,000 in punitive damages awarded to Illinois plaintiff– Norristown plaintiff sues Aaron’s Sale & Lease for

infestation cause by leased furniture

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Claims Asserted in Bed Bug Lawsuits

• Plaintiffs seek recovery under a variety of legal theories:– Negligence– Assault– Battery– Negligent and Intentional Infliction of

Emotional Distress– Premises Liability– Breach of Contract/Lease– Breach of Warranties– Constructive Eviction

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Commercial General Liability Insurance

• The CGL policy typically provides coverage as follows:– We will pay those sums that the insured

becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies

– We will have the right and duty to defend the insured against any “suit” seeking those damages

– However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” to which this insurance does not apply

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Coverage Provided Under the Insuring Agreement

• The insurance applies to “bodily injury” and “property damage” only if:

– “bodily injury” or properly damage is caused by an “occurrence” and;

– The “bodily injury” or “property damage” occurs during the policy period

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Relevant Definitions• “Bodily injury” means bodily injury, sickness

or disease sustained by a person, including death resulting from any of these at any time

• “Property damage” means physical injury to tangible property, including all resulting loss of use that property

• “Occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions

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Owned Property Exclusion

• The CGL policy will not provide coverage for damage to:– “Property you own, rent, or occupy”

• Coverage is afforded for third party liability

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Duty to Defend• The duty to defend is broad• “An insurer’s duty to defend is broader than the

duty to indemnify and arises whenever the allegations of the complaint against the insured, liberally construed, potentially fall within the scope of the risks undertaken by the insurer.” Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208, 218 (2002); New York City Hous. Auth. v Commercial Union Ins. Co., 289 AD2d 311, 312 (2001)

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Claims that May be Covered by Your CGL

Policy• Negligence based claims• Claims based on premises liability• Negligent infliction of emotional

distress• Damage resulting from covered claims

– New York law provides coverage for pure emotional distress claims

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Liability Coverage under the Homeowners Policy Afforded by

the CGL Policy• Homeowners policies also provide liability

coverage• The typical homeowners policy provides

coverage for personal liability – If a claim is made or a suit is brought against an

“insured” for damages because of “bodily injury” or “property damage” caused by an “occurrence” to which coverage applies, the insurer will:• Pay up to the limit of liability for the damages for

which an “insured” is legally liable• Provide a defense at the consumer’s expense by

counsel of our choice, even in the suit is groundless, false or fraudulent

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What to Do When a Claim is Made

• Immediately notify your insurance company

• Investigate the claim

• Review your insurance policy’s notice provisions and comply completely

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Notice Provisions• Liability policies contain the following notice provisions:

– You must see to it that we are notified as soon as practicable of an “occurrence” or an offense which may result in a claim. To the extent possible, notice should include:

• How, when and where the “occurrence” or offense took place;• The names and addresses of any injured persons and witnesses;

and • The nature and location of any injury or damage arising out of the

“occurrence” or offense

– If a claim is made or “suit” is brought against any insured, you must

• Immediately record the specifics of the claim or “suit” and the date received; and

• Notify us as soon as possible

– You must see to it that we receive written notice of the claim of “suit” as soon as practicable

Bed Bugs in the Bed Bugs in the WorkplaceWorkplace

Are you Prepared?Are you Prepared?Presented by:David Cassidy

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Office Memo: Bed Bugs Are Back

“They've moved out of the boudoir and into movie theaters, retail stores, libraries, firehouses, and inevitably, the workplace.”

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Employees who work in Goldman [Sach]'s Jersey City, N.J., office tower have been moved from certain floors and ordered out of the building at times because exterminators have been in checking and spraying for bed bugs, said two separate sources at the firm. Neither source was comfortable being quoted by name, citing company policy.

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ThreatsThreats

• Damaged reputation

• Lost Revenue

• Decreased Productivity

• Litigation

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HR Issues With Bed HR Issues With Bed BugsBugs

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Legal IssuesLegal Issues• Occupational Health and Safety Administration

(OSHA)– OSHA Regulations– Whistleblower status

• Americans with Disabilities Act (ADA)– How Bed Bugs can trigger

“disabilities”/accommodation issues

• Family Medical Leave Act (FMLA)– When can someone claim FMLA leave for bedbugs?

• Workers Comp/3rd Party Negligence– The Workers Comp loophole and innovative plaintiff

attorneys

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Legal Issues, Cont’dLegal Issues, Cont’d

• Privacy and Defamation Issues• National Labor Relations Act –

concerted & protected activity

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Policy ConcernsPolicy Concerns

• Traveling Employees• In-home Service Employees• Company Uniforms• Company Vehicles• Leave Time for Extermination• Extermination Costs – Who pays?

Occupational Safety and

Health Administration

(OSHA)

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The "H" in OSHA Stands The "H" in OSHA Stands for Healthfor Health

• OSHA regulates more than just safety hazards in the workplace.

• OSHA was founded to assure workers of both safe and healthy working conditions.

• The health issues that OSHA monitors often are overlooked.

• Health issues include indoor air quality, sanitation, ergonomics, environment, workplace stress, and workplace violence

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OSHA’s General Duty OSHA’s General Duty Clause – Clause –

“The Catchall”“The Catchall”29 29 U.S.CU.S.C. § 654, 5(a)(1). § 654, 5(a)(1)“Each employer shall furnish to each of

his employees, a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his

employees."

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OSHA’s General OSHA’s General Environmental Environmental

Regulation Regulation 29 29 C.F.RC.F.R. 1910.141(a)(5). 1910.141(a)(5) “Vermin control. Every enclosed workplace

shall be so constructed, equipped, and maintained, so far as reasonably practicable, as to prevent the entrance or harborage of

rodents, insects, and other vermin. A continuing and effective extermination program shall be instituted where their

presence is detected.”

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OSHA’s Whistleblower OSHA’s Whistleblower ClauseClause

29 29 U.S.CU.S.C. §660. §660• Section 11(c) of OSHA prohibits any person from

discharging or in any manner retaliating against any employee because the employee has exercised rights under the Act.

• Rights include complaining to OSHA and seeking an OSHA inspection, participating in an OSHA inspection, and participating or testifying in any proceeding related to an OSHA inspection.

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When OSHA calls…When OSHA calls…• Don’t Panic

– They can’t and won’t chase down every bedbug infestation

• Have a comprehensive written plan of attack– Show that you are aware of the situation and are

taking steps to combat the problem

• Be sure to follow any OSHA recordkeeping requirements that may be applicable to you– Business establishments classified in a specific low

hazard retail, service, finance, insurance or real estate industry are generally exempt

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Do Your Homework!Do Your Homework!

• Does your building code have a vermin provision that requires you to monitor bed bug issues?

• Does your local health code require you to keep your building free of insects?

• Do you have relevant policies, and if so, are you following it?

Americans with Disabilities Act

(ADA)

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Definition of “Disability” Definition of “Disability” Under the Under the ADAADA

• The basic definition of the term “disability”:– A physical or mental impairment that

“substantially limits” one or more “major life activities” of such individual

– A record of such impairment– Being regarded as having such an impairment

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““Major Life Activities”Major Life Activities”

• Caring for oneself• Performing manual

tasks• Seeing• Hearing• Eating• Communicating• Walking• Standing• Sleeping

• Bending• Speaking• Breathing• Learning• Reading• Concentrating• Thinking• Lifting• Working

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Bedbugs, Sleeping and Bedbugs, Sleeping and the ADAthe ADA

• An impairment substantially limits an individual's ability to sleep if sleep is significantly restricted as compared to the average person

• An individual would not be substantially limited in sleeping if she/he had some trouble getting to sleep or sometimes slept fitfully because of a mental impairment

• The determination of whether a particular person is substantially limited in sleeping is very fact-specific

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American Psychological American Psychological Association (APA): Bed Bugs Association (APA): Bed Bugs May Trigger AnxietyMay Trigger AnxietyMedPage Today.comMedPage Today.com

• Media Frenzy surround reports of bedbug infestation in NY may increase acute anxiety and mood disorders

• Evan Rieder, MD, urges colleagues to be aware of risks associated with bedbug psychosis

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APA: Bed Bugs May APA: Bed Bugs May Trigger Anxiety – Trigger Anxiety –

continuedcontinuedMedPage Today.comMedPage Today.com• Patients with prior medical or psychiatric

history can decompensate even if they have been medically stable for a significant period.

• Bedbugs create a unique problem compared to other pests, as they have close physical contact and feed off human blood in a place of retreat and comfort – your bed.

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Study: Bed Bugs Could Study: Bed Bugs Could Carry MRSACarry MRSA

Updated: Wednesday, 11 May 2011, 11:05 PM EDTUpdated: Wednesday, 11 May 2011, 11:05 PM EDTBy DAN BOWENS with MYFOX NEW YORK STAFFBy DAN BOWENS with MYFOX NEW YORK STAFF

• MRSA – Methicillin-Resistant Staphylococcus Aureus, a baterial infection that is highly resistant to some antibiotics, found in bed bugs in Canada

• Staphylococcus Aureus is a common type of bacteria that normally live on the skin or nasal passage of healthy people.

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Study: Bed Bugs Could Study: Bed Bugs Could Carry MRSA - ContinuedCarry MRSA - Continued

Updated: Wednesday, 11 May 2011, 11:05 PM EDTUpdated: Wednesday, 11 May 2011, 11:05 PM EDTBy DAN BOWENS with MYFOX NEW YORK STAFFBy DAN BOWENS with MYFOX NEW YORK STAFF

• There is no evidence showing that bed bugs actually carry MRSA, the bites cause itching and a potential risk for infection.

• Dr. Steven Garner warns New York to take note of the Canadian study and suggests testing in the inner-city.

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EEOC GuidanceEEOC GuidanceThe Story So FarThe Story So Far

• When does an impairment substantially limit an individual's ability to sleep? – An impairment substantially limits an individual's ability to sleep if, due to

the impairment, his/her sleep is significantly restricted as compared to the average person in the general population. These limitations must be long-term or potentially long-term as opposed to temporary to justify a finding of ADA disability.

– For example, an individual who sleeps only a negligible amount without medication for many months, due to post-traumatic stress disorder, would be significantly restricted as compared to the average person in the general population and, therefore, would be substantially limited in sleeping. Similarly, an individual who for several months typically slept about two to three hours per night without medication, due to depression, also would be substantially limited in sleeping.

– See EEOC Psychiatric Disabilities Guidance at question 11.

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Can Bedbugs be a Can Bedbugs be a Disability?Disability?

• Bedbugs themselves – Unlikely• Side Effects – Definitely

– Lack of sleep– Depression/Anxiety– Delusory Parasitosis

• Patients acquire a strong delusional belief that they are infested with parasites/insects/bugs

– Delusory Cleptoparasitosis• A form of delusion of parasitosis where the

sufferer believes the infestation is in their dwelling, rather than on or in their body

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ADA AccommodationsADA Accommodations

• Leave of absences to treat disability

• Hours of Work reassigned – sleeping issues

• Other accommodations– Work at home if workplace infested

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Extermination IssuesExtermination Issues

• Does the extermination procedure (use of chemicals, etc.) comply with OSHA regulations?– Choose your professional carefully!

• Will the extermination procedure trigger ADA-eligible illnesses with employees?– Allergies– Sick Building Syndrome– Chemical Sensitivity

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Additional IssuesAdditional Issues

• Traveling Employees• Service Employees• Uniform Policies• Company Vehicles

Family Medical Leave Act and Other Leave

Issues

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When Leave is a When Leave is a AppropriateAppropriate

• Does Family Medical Leave Act Apply– To employees with bedbugs?– To employees seeking to avoid bedbugs?

• Can you send an employee home if he or she reports having bedbugs at home?

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Employees Seeking Employees Seeking Leave to Avoid Getting Leave to Avoid Getting

BedbugsBedbugs• Department of Labor’s Guidance on H1N1

– November, 2009 - Instructive

– The DOL noted that FMLA leave is NOT available to avoid exposure to the flu.  

– The DOL, however, encourages employee's and employers to allow employees to stay home to minimize the spread of the pandemic who are ill or who have been exposed to someone who is ill with pandemic influenza. 

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Salaried EmployeesSalaried Employees

• Be careful when salaried employees take time off for bed bug remediation: – Cannot deduct pay for partial day

absences– Cannot deduct pay for time off unless a

bona fide plan or policy exists– Consult counsel – tricky issue

Workers’ Compensation

Exception

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Workers’ CompensationWorkers’ Compensation• If an employee claims injury from bedbugs at the

workplace, workers’ compensation should cover the employer– An exception to the exclusivity of workers' compensation

exists when an employer commits an intentional tort or wrong. In those cases, an employee can either pursue a civil claim or Workers’ Compensation benefits. The remedies are mutually exclusive.

– In the Fox News case, the employee received Workers’ Compensation under WCL § 11 under the theory that workers’ compensation is the exclusive remedy for employees injured in the course of employment. See Clark v. Beacon Capital Partners, LLC, 2011 NY Slip Op 30920(u) (April 12, 2011).

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Protected & Concerted Protected & Concerted ActivityActivity

• Employer cannot fire employees for engaging in protected, concerted acts (Section 7 Rights)– Concerted refusal to perform dangerous

work (even if no union)– Discussion of work issues, at work or on a

blog or anywhere – Partial strikes

• Discussion of bed bugs in the workplace would be protected and concerted

Protection and Policies

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First & ForemostFirst & Foremost

• This is an HR issue– Morale issues– Productivity issues– Legal issues

• Education is critical• Facilities/maintenance is important

but secondary

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How to Avoid LitigationHow to Avoid Litigation

• Have a Policy and Follow It• Documentation• Perform regular

inspections and implement preventative measures

• Provide education for staff • Have a remedial action

plan in place now

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Handling ComplaintsHandling Complaints

• Identify an expert/point person who can handle complaints compassionately and logically

• Be open and resolution-oriented • React quickly and seek professional help• Document your procedure, including:

complaint, inspection, confirmation, cleaning, treatment, future prevention, and follow up

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Avoid the “Blame Avoid the “Blame Game”Game”

• Finding “the Source” is important, but beware of potential discrimination claims– Disparate Impact– Disparate Treatment

• Avoid singling out employees and be aware of the potential for:– Discrimination Claims - Disparate treatment

& impact– Harassment claims

• The Scarlet “B”– Defamation claims

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Do You Have a Bed Bug Do You Have a Bed Bug Policy?Policy?

• Information about bed bug prevention• How to react when learning about the

presence of bed bugs– Important to assist management in proper

response

• Clarification on leave policy in the event of infestation– Are there specific work-from-home policies

& for whom is this an option?

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Invasion of Invasion of Privacy/DefamationPrivacy/Defamation

• Prudent employers should also make sure that that they do not breach employees’ privacy

• Prudent employers will limit discussion and disclosure of bed bugs

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Don’tsDon’ts

• Don’t try to silence employees about the problem, as this could lead to whistleblower claims or, in the Union context, NLRA violations

• Don’t play the blame game, as this could trigger a defamation claim or a discrimination claim

• Don’t “over react” -- Supervisors must be very careful in how they react to employees that may have brought bed bugs onto the premises to not foster panic

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The The Scarlet BScarlet B • Do Not Discriminate

• Do Not Retaliate

• Do Not Shun, Blame or Defame!

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To Pay or Not to PayTo Pay or Not to Pay

• No Good Deed Goes Unpunished – what one gets, all must get!

• Home Extermination Guidelines:– Must be a uniform rule/policy/practice– Written policy and guidelines

suggested– Do Not Discriminate or Play Favorites

Questions & Questions & Answers SessionAnswers Session

Thank you for coming!