Editor’s Note – Mark Lies II is a labor and employment law attorney and partner with the Chicago, IL, law firm of Seyfarth Shaw. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
Since the beginning of life on this planet there has been a life form known as “mold.” As will be discussed, mold is a naturally recurring fungus found in both outdoor and indoor environments. Only recently, as public awareness of alleged health complaints or property damage resulting from mold exposure has been heightened, the potential for liability has arisen in many aspects, including:
• Employer liability for worker’s compensation;
• Employer liability for a health hazard under the Occupational Safety and Health Act (OSHA);
• Employer liability to accommodate employees who may have a “disability” affected by mold exposure under the Americans with Disabilities Act (ADA);
• Landowner liability to tenants, invitees, and other persons who come to the property (negligence);
• Contractor liability for the design, construction, or maintenance of a building that develops mold problems (breach of contract, warrant, negligence).
Mold
Mold is simply a form of fungus that exists naturally in outdoor and indoor environments. Molds that are found indoors typically originate in the outdoor environment and enter a building through a variety of airborne means, including open windows and doorways, and heating/ventilating/air conditioning (HVAC) systems. People can also bring the mold into the building on their clothing or other articles, including plants and other vegetation.
In order to initially establish themselves and to sustain their growth, mold must have moisture, oxygen, and some organic material as a food source. Typically, mold develops in a building where there is an ongoing moisture problem due to leaking water or condensation.
Claimed Health Hazard
As the mold metabolizes its food source, it produces mycotoxins as by-products. The typical mycotoxins that are alleged to cause adverse health affects in humans include Stachybotrys chartarum, Aspergillus, Penicillium, and Cladosporium.
The fact that mold (or mycotoxins) exists in a building does not translate into any health hazard since the levels may not exceed those in the ambient outside environment. Further, in order for there to be human exposure, there must be mold (spores or their related by-products) present in the air that an individual must either inhale, swallow, or come into physical contact.
Since mold is present in the outdoor environment, most individuals suffer no adverse health affects from exposure. Mold exposure will affect each individual in a different fashion, depending upon the level of exposure, the state of the individual’s health, including sensitivities to chemicals, or allergies.
At present, there is a lack of consensus in the scientific community as to the relationship between alleged exposure to mold and adverse health affects. In addition, there are no established federal regulations setting permissible exposure limits for mold, although various federal agencies have issued voluntary guidelines.
Despite the foregoing uncertainties about whether and at what levels of mold exposure there may be negative health affects, the potential legal liabilities are growing in several areas.
Worker’s Compensation
If an employee can prove exposure to mold and causation of the adverse health affect in the workplace, worker’s compensation liability may exist. This liability can include disability benefits and medical treatment expenses.
OSHA
While OSHA has no specific regulation relating to mold exposure, it can employ the “General Duty Clause” (Section 5(a)(1)), to regulate a recognized health hazard that can cause serious injury or death. The author has participated in OSHA inspections responding to employee complaints concerning mold exposure. The agency has issued information to employers on how to respond. OSHA can issue citations with monetary penalties for such hazards.
ADA
In addition, if an employee can prove that s/he has a “disability” (e.g., impairment of a major life activity, such as breathing) that is negatively affected by exposure to mold, the employer may have a duty to “accommodate” the employee by reassignment to a position where there will not be such exposure, or other means, such as ventilation or remediation. Failure to make such an accommodation may result in a charge of employment discrimination.
Landowner/Contractor Liability
Outside the employer-employee relationship, significant liability can exist for the owner of the premises where the mold exists to tenants or invitees, or for the contractor or other professional (architect, engineer) who initially designed, constructed, or has maintained the premises where the alleged mold developed. These claims can include personal injury or property damage, including potential punitive damages if the defendant’s conduct is intentional or reckless regarding the potential hazard and its response.
Response Plan
In order to avoid or reduce potential liability for mold exposure claims, the responsible party should consider developing a program which seeks to prevent the mold from developing in the first place and, if necessary, to respond promptly to such infestation if it occurs.
The following steps should be considered:
• Develop a comprehensive indoor environmental quality (IEQ) plan to prevent indoor air quality problems from developing, including:
— Proper operation of the HVAC system;
— Oversight of activities of occupants and contractors that affect indoor air quality;
— Develop effective means to timely communicate to employees about indoor air quality, encouraging them to promptly report any unusual conditions or health complaints;
— Educate management of occupants and building owners about indoor air quality issues, including mold, to ensure that there is coordination of the indoor air quality programs, particular projects within tenant spaces (renovation or redecoration);
• Develop a prompt, coordinated response plan to complaints which arise, including engagement of industrial hygienists, mechanical engi-neers, mycotoxicologists, occupational medicine physicians, to evaluate the nature and extent of any alleged mold conditions and to develop a comprehensive remediation plan.
Conclusion
Despite an ongoing scientific controversy, mold-related complaints and legal liability will undoubtedly increase. By developing a competent IEQ program, this liability can be substantially reduced for the various classes of potentially liable parties.
Labor and the Law - October 2002 Render