Protecting BSCs From Liability Claims
- Workplace Transparency Minimizes Legal Risk
Shari Solomon has been fielding employers’ pandemic-related regulatory questions for the better part of a year. As a consultant for CleanHealth Environmental LLC, Silver Spring, Maryland, she frequently coaches them on worker protection requirements coming down the pike and how best to protect their employees and their business.
Indeed, the threat of citation or, worse yet, litigation is a concern for building service contractors as they encounter new regulations and growing demand for services to prevent or eradicate COVID-19.
To best position themselves, BSCs should first comply with standards already in place — namely the Occupational Safety and Health Administration’s (OSHA) personal protective equipment (PPE) and bloodborne pathogens regulations, as well as the agency’s general duty clause requiring employers to provide a hazard-free work environment. Contractors should also reference OSHA’s guidance document on preparing workplaces for COVID-19.
“The document is a guideline, so it’s not required by law; however, it does represent the industry standard of care,” says Solomon. “If an employer violates the guidance, there is the opportunity for a successful negligence claim against them.”
COVID-19 regulations are already being enacted at the state level. Virginia was the first state to pass the Emergency Temporary Standard, which requires employers to complete infectious disease preparedness and response plans and imposes fines for willful violations and non-compliance. Other states have issued guidelines and executive orders with worker protection requirements.
In states such as Oregon, Michigan and Nevada, enforcement is handled by state occupational safety and health agencies. In others, health departments and the attorney general’s office monitor compliance. Those states where federal OSHA has traditionally done enforcement are still figuring out how best to require these protections.
As states continue to enact regulations, BSCs are advised to assess their level of risk and develop an infectious disease preparedness and response plan, regardless of what states they work in.
“PPE is instrumental in protecting workers, so part of that response plan will cover provisions for proper personal protective equipment,” says Solomon.
No doubt, PPE shortages have been — and continue to be — a liability concern for contractors. Like many BSCs, Bryan Lazorik, president of Bryco Facility Services, Merrillville, Indiana, stocked up on extra PPE at the onset of the pandemic. However, continuing shortages and skyrocketing prices made it difficult for him to stay ahead of the game.
“My recommendation is to have a good vendor for PPE supplies,” says Lazorik. “You need someone who will work with you to keep you updated on price changes, back-ordered items and expected delivery dates so you can plan accordingly.”
Unfortunately PPE shortages are often beyond the vendor’s control, leaving contractors vulnerable to citations and staff at risk of infection.
“What BSCs can do to prepare for PPE shortages is document, document, document,” says Solomon. “If you’re having trouble with the supply chain, you need to document everything to show that you’re making a good faith effort to find different vendors and obtain the necessary PPE.”
Contractors can further safeguard their business by updating and enforcing PPE protocols.
“In the past, our cleaners only wore masks in the bathrooms or in medical environments,” says Michael Diamond, managing partner for AffinEco LLC, Brideport, Connecticut. “Now we make sure they wear one all the time, whether they’re working alone or not. The same goes for gloves: We always provided them, but not everyone liked wearing them for tasks like dusting or emptying trash. Now, it’s mandatory.”
Bryco Facility Services requires frontline cleaners and supervisors to put on gloves and masks prior to entering the facility.
“Before, they would go to the janitor’s closet and start their day. Now that starts in the parking lot,” says Lazorik. “As soon as they’re out of their vehicle, they put on their masks and gloves.”
Along with more stringent PPE policies, Janitronics, a BSC based in Albany, New York, has started implementing social distancing procedures for its frontline workers, per guidelines from the Centers for Disease Control and Prevention (CDC).
“We’re documenting our service specialists’ routes and making sure that they don’t show up in the same area at the same time,” says Jeff Merrihew, special services director for Janitronics.
These changes come on the heels of New York’s executive orders pertaining to PPE, social distancing and recordkeeping. According to Merrihew, one of the requirements is for BSCs to maintain logs of everyone entering or exiting the facility — both on site and at customers’ properties.
“We follow CDC guidelines and work closely with our local department of health, as well as the customers we service,” says Merrihew. “It’s important to keep ourselves up to date and as educated as possible so that we’re compliant.”
For The Record
BSCs admit that they are spending more time and money training employees in PPE and infection control practices. It’s also taking additional time to document said training, all so companies can avoid the consequences of non-compliance.
AffinEco had close to 60 supervisory team members trained in biorisk and COVID-19 disinfection. Similarly, Bryco Facility Services ramped up its disinfection training in March.
“People that didn’t clean healthcare clients were now being trained to clean office clients like they were healthcare clients,” says Diamond.
Additionally, BSCs are strengthening protocols to protect workers and making sure that they keep a paper trail. Temperature checks and health screenings are now routine for many custodians.
AffinEco is testing a variety of software applications for pre-shift health checks that allow staff to dial in or log in online and answer health questions two hours before their shift starts. The company has also paid its workers to stay home when sick and has several clients who have done the same.
Any increase in paperwork should be factored into the custodian’s workload. Janitronics has implemented manual log books at customers’ sites to satisfy health department requirements. Custodians record areas and frequencies of service and sign off when work is completed.
“The logs are a bit cumbersome, but it makes it easy for people to sign off,” says Merrihew. “And anyone entering the space has immediate access to the records, per department of health requirements.”
The additional recordkeeping is new to most contractors, but BSCs stress the importance of being meticulous during the pandemic, especially for purposes of contact tracing.
“If an employee tests positive for COVID-19, the department of health will contact us and ask questions,” says Merrihew. “This is when work assignment logs become even more important.”
Workplace Transparency Minimizes Legal Risk