4 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
5 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
6 Bed Bugs Hotels Apartments & houses Hospitals & nursing homes Schools Office buildings And spreading to... Modes of transportation Movie theaters
7 Bed Bugs ¼ inch Reddish brown Oval, flat Sometimes confused with cockroaches or ticks
15 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)
33 Early Detection Dog inspections Quick & over 90% accurate Ideal for multi-unit buildings Can limit treatment areas Roscoe
34 Preparation Prep List – What to do with clothing, toys, books, etc. Treatment success depends largely upon how well an area is prepared
35 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
36 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
Statutes, Case and Recent Legislative Developments By: Michael T. Reilly
39 Relevant New York State and New York City Statutes A.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
40 Relevant New York State and New York City Statutes B.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
41 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
42 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
43 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
44 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 tenants 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
45 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
46 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 notice F.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
47 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
48 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
49 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
50 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
52 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?
53 What Are Your Potential Costs? Remediation Replacement Loss of business Injury to employees Compensation to tenants or guests Costly litigation Settlements
54 Types of Insurance Coverage Homeowners Renters Workers Compensation Commercial General Liability Commercial Property Business Owners/Business Interruption
55 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.
56 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
57 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
58 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
59 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
60 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
61 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 Aarons Sale & Lease for infestation cause by leased furniture
62 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
63 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 ofbodily 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
64 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
65 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
66 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
67 Duty to Defend The duty to defend is broad An insurers 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)
68 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
69 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 consumers expense by counsel of our choice, even in the suit is groundless, false or fraudulent
70 What to Do When a Claim is Made Immediately notify your insurance company Investigate the claim Review your insurance policys notice provisions and comply completely
71 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 Workplace Are you Prepared? Presented by: David Cassidy
73 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.
74 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.
75 Threats Damaged reputation Lost Revenue Decreased Productivity Litigation
77 Legal 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/3 rd Party Negligence –The Workers Comp loophole and innovative plaintiff attorneys
78 Legal Issues, Contd Privacy and Defamation Issues National Labor Relations Act – concerted & protected activity
79 Policy 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)
81 The "H" in OSHA Stands for 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
82 OSHAs General Duty Clause – The Catchall 29 U.S.C. § 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."
83 OSHAs General Environmental Regulation 29 C.F.R. 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.
84 OSHAs Whistleblower Clause 29 U.S.C. §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.
85 When OSHA calls… Dont Panic –They cant and wont 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
86 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?
88 Definition of Disability Under the ADA 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
89 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
90 Bedbugs, Sleeping and the 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
91 American Psychological Association (APA): Bed Bugs May Trigger Anxiety MedPage 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
92 APA: Bed Bugs May Trigger Anxiety – continued MedPage 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.
93 Study: Bed Bugs Could Carry MRSA Updated: Wednesday, 11 May 2011, 11:05 PM EDT By 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.
94 Study: Bed Bugs Could Carry MRSA - Continued Updated: Wednesday, 11 May 2011, 11:05 PM EDT By 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.
95 EEOC Guidance The 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.
96 Can Bedbugs be a 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
97 ADA Accommodations Leave of absences to treat disability Hours of Work reassigned – sleeping issues Other accommodations –Work at home if workplace infested
98 Extermination 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
99 Additional Issues Traveling Employees Service Employees Uniform Policies Company Vehicles
Family Medical Leave Act and Other Leave Issues
101 When Leave is a Appropriate 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?
102 Employees Seeking Leave to Avoid Getting Bedbugs Department of Labors 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.
103 Salaried 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
105 Workers 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).
106 Protected & Concerted Activity 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
108 First & Foremost This is an HR issue –Morale issues –Productivity issues –Legal issues Education is critical Facilities/maintenance is important but secondary
109 How 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
110 Handling 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
111 Avoid the Blame 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
112 Do You Have a Bed Bug 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?
113 Invasion of Privacy/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
114 Donts Dont try to silence employees about the problem, as this could lead to whistleblower claims or, in the Union context, NLRA violations Dont play the blame game, as this could trigger a defamation claim or a discrimination claim Dont 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
115 The Scarlet B Do Not Discriminate Do Not Retaliate Do Not Shun, Blame or Defame!
116 To 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 & Answers Session Thank you for coming!