• Employers Don't Need to Worry About Bedbugs . . . Or Do They?
  • September 23, 2010 | Authors: Richard I. Greenberg; Roger S. Kaplan
  • Law Firms: Jackson Lewis LLP - New York Office ; Jackson Lewis LLP - Melville Office
  • Bedbug infestations reported recently in major cities, including New York, Detroit and Cincinnati, have again drawn public attention to this growing pestilential nuisance.  A casual observer might assume that bedbugs would not concern a human resources professional, in-house counsel or office administrator.  He would be wrong.  Bedbugs are invading workplaces, too.  Offices, retail stores and other establishments have reported their presence.  As with any other issue that may affect the workplace, employers need to understand the nature of the problem and their responsibility for addressing it.  Left unchecked, it can become the focal point of any number of workplace complaints, grievances and charges. 
     
    The following frequently asked questions -- and answers -- may be of assistance to employers in coming to grips with the bedbug problem.  (We do not address other, related obligations that may be imposed because of the specific nature of a business, such as a hotel or landlord's obligation in certain circumstances to report any bedbugs found on the premises to governmental authorities or guests.)

    Question:  What is a bedbug, and are they harmful?
     
    Answer:  A bedbug is a small insect that feeds on human blood.  Generally, bed bugs are active at night.  Bites may turn into large, itchy skin welts. Bedbugs can enter a location by “hitchhiking” on furniture, luggage or clothing.  Bedbug remediation often requires the services of a licensed pest management professional.  Bedbugs can result in physical and psychological injuries, according to reports, but in many cases the insects present more of an annoyance than a true health threat.
     
    Question:  Do employers have an obligation to maintain a bedbug-free workplace?
     
    Answer:  While there is no regulatory provision, Occupational Safety and Health Administration's statutory "general duty" (requiring employers to provide a safe workplace free from recognized hazards causing or likely to cause serious physical harm to employees) might include providing a bedbug-free environment.  If powdered or chemical sprays are used to control the “wee beasties,” their use might implicate specific OSHA protections.  Recordkeeping obligations, where applicable, also are a possibility. 
     
    Question:  What are some recommendations for employers?
     
    Answer:  First, employers should consider providing employees with information regarding bedbugs and asking employees to take proactive preventive measures.  Sources for such information include the Centers for Disease Control and Prevention (CDC) and the U.S. Environmental Protection Agency (EPA). Second, employers should consider requiring employees to advise the Human Resources department if bedbugs have been found in their home or any location where they resided for any period of time, such as a hotel.  These employees may be given information to reduce the risk of bringing bedbugs to work inadvertently or, in certain cases, asked to remain at home (see below).  Third, if an employer becomes aware that bedbugs may have migrated to the workplace, the employer should take immediate measures to cleanse the workplace and prevent further spread.  
     
    Question:  Do any industries require a higher level of investigation and response?
     
    Answer:  Yes.  Hotel and health care industry employers may wish to implement protective measures for those with cleaning responsibilities and to ensure all laundering processes maximize the ability to eliminate bedbugs.  Apparel industry employers also should focus on this issue since an infestation could result in thousands of dollars of destroyed goods and damaged reputations.  Additionally, if an employer sends employees or agents into clients' homes, preventive measures should be considered, such as asking the client whether there are any bedbugs on the premises.  Finally, employers who use outside vendors to clean employees’ uniforms should ensure the vendors are aware of the concern and take appropriate preventive measures.
     
    Question:  Could an employer be held responsible if one employee is exposed to bedbugs as a result of another employee or building tenant bringing bedbugs into the workplace?
     
    Answer:  Possibly. If an employer is aware of bedbugs on the premises and does not take immediate steps to remediate or does not take measures to prevent employees from bringing bedbugs into the workplace, the employer could be liable for negligence.
     
    Question:  If an employee reports exposure to bedbugs, such as an infestation in their residence, can the employer require the individual to stay home or to take measures to ensure that clothing or items brought to work are bedbug free?
     
    Answer:  Generally, yes.  If the employee is exempt under the Fair Labor Standards Act (FLSA), however, any absence of less than a full week must be paid.
     
    Question:  Can an employee who misses work due to exposure to bedbugs at work be eligible for workers' compensation benefits?
     
    Answer:  Possibly.  Although this is a developing area, exposure reportedly could lead to adverse physical and psychological reactions.
     
    Question:  If an employee reports exposure in his or her home but states that he or she cannot afford to remediate or that he or she needs a leave of absence, can an employer terminate the employee?
     
    Answer:  Possibly, but an analysis of various legal issues is necessary.  Issues to be reviewed include potential application of the Family and Medical Leave Act (FMLA), other company leave policies, state workers' compensation laws, OSHA and state legal activities laws.  Of course, there are additional considerations if the employee was first exposed to the bedbugs in the workplace. An attorney should be consulted before taking any adverse action against the employee.