If you follow the news, you’ve probably heard about the resurgence of bedbug infestations around the country. If you travel for business like I do, maybe you have checked out the Bedbug Registry website to make sure your hotel is clean. Unfortunately, the bedbug problem has moved beyond hotels and into theaters, retail stores and the workplace. I have not had any clients call with bedbug issues, but I have heard from colleagues that calls are coming in from employers. The primary question is what exposure employers may have and what to do about it.
In most litigation to date, the party being sued is the landlord or business owner and the plaintiff is usually a hotel guest or customer who has been bitten at the business and/or carried bedbugs home, causing additional bites and property damage. Employers who do not own their facilities may look to their landlords if an infestation occurs, but they are not necessarily free from liability depending on the circumstances. Here are a few possible scenarios to keep you up at night:
Workers Compensation — If an employee suffers bedbug bites at work, it could be the basis for a workers compensation claim. In most cases, the bites are more of a minor annoyance and do not require significant medical attention. However, employees could develop stress related conditions such as the heebie jeebies. Joking aside, this is exactly what happened to a Fox News employee in New York who was bitten at work. She has sued the building's owner, management company and maintenance company but not her employer because she has received full workers compensation benefits for her psychological injuries.
Disability Discrimination — As with Workers Compensation, the primary issue is probably not the bites themselves, although I would not completely rule them out as the basis for a disability in some jurisdictions. Rather, it is the related conditions such as stress that could form the basis of a disability claim. The fact that bedbugs are so notoriously difficult to get rid of could provide support for such claims, particularly if the employees takes the infestation home and suffers additional damage.
OSHA — I searched the OSHA website for “bedbugs” and found no references. Apparently, the Fox News employee complained to OSHA but the employer’s response convinced the agency that “our file on this matter can be closed, and no further action on this complaint is anticipated at this time." If the headlines continue, I suspect OSHA’s interest in this issue may increase. Depending on how the employer addresses infestations, there could be other OSHA issues, e.g. air quality arising from pesticide use.
Privacy Issues — One issue that I have heard about from a colleague is an employer’s plan to confront an employee who was the suspected source of a bedbug infestation at work. I am not sure exactly what they had in mind but there was some discussion of examining the employee’s personal belongings for bedbugs. Obviously, subjecting employees to humiliating inspections for bedbugs is not a good idea. It is virtually impossible absent an admission to pinpoint the source of an infestation and an employee is likely to claim that if they do have bedbugs, they got them at work. Searching belongings or an employee’s person may violate a reasonable expectation of privacy and lead to liability. It could also lead to . . .
Employment Discrimination — An employee who is suspected to be the source of an infestation may feel that the suspicion is not based on any objective evidence but is the product of bias against some protected status, e.g. race, national origin, etc. Similarly, workplace discussions and accusations could lead to harassment claims.
Third Party Claims — Employees who take bedbugs home from work could suffer significant damages. Family members may suffer bites and there can be significant expenses to eradicate the problem, e.g. hiring exterminators, replacing beds and bedding, etc. While an employee’s own damages at work would likely be covered by workers compensation, family members could assert third-party claims for their damages. The analysis of such claims would likely be based on the forseeability of the harm.
Publicity — This is not a legal claim but it is not good for any business to be identified as having a bedbug infestation. Awkward to say the least.
What should an employer do if bedbugs are discovered at work? Every situation is different but in general the focus should be on eradicating the problem and protecting employees. Employers should be open and honest about the situation and hire professionals to correct it. Here is a link to the National Pest Association’s Bedbug Hub — everything you wanted to know and more.
Have you had any issues with bedbugs in the workplace? If so, drop me a line — I’m itching to hear from you. You'll find a link to my email at the CONTACT line below.
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