New developments in health and safety regularly present legal challenges for those in the remediation and restoration profession. Increased scientific understanding of the health impacts from natural and man-made environmental hazards leads to government regulation that impacts on-the-job work practices. In addition, greater concern about health risks for both customers and employees raises risk management and insurance issues.
At the RIA’s 2010 Convention, I presented an educational session on “Legal Developments in Health and Safety.” This is a summary of several key themes addressed in that presentation.
Both our national and state governments are charged with protecting public health and safety. In the remediation and restoration field, the primary areas of law and regulation are the EPA’s protection of the environment and the general public, and OSHA’s protection of workers.
The safety of the occupants of buildings is divided between HUD for residential units, OSHA for commercial property, and the EPA, which regulates general air release and disposal methods for toxics and pollutants. Many states have counterpart agencies which share or overlap in these areas of responsibility. Frequently, state regulations will be even more stringent than federal regulations.
Laws in the form of statutes and regulations are only part of the legal system which governs contractors and consultants in our industry. Any business providing services or goods must comply with the “the standard of care for that business.” This is the proper way something should be done. Federal and state statutes and regulations set a minimum standard of care, but you must meet the standards and practices of work in your industry to avoid liability.
These standards are developed by standard-setting organizations, such as AIHA, ANSI, ASHRAE and the RIA, or can arise from the accepted practices that are generally recognized as reasonable.
Evidence of the standard of care can arise from information published in industry journals. As a result, it is important to keep abreast of news in your industry. It is also an excellent strategy to develop a relationship with an attorney who can counsel you on regulatory issues specific to your business and the states in which you work.
Currently, three of the most significant health and safety pitfalls for restoration and remediation companies are:
- New EPA lead regulations requiring extensive work safety practices
- Recognition of potential health hazards from moldy and damp environments, and
- Increased regulation and enforcement by OSHA and the EPA
EPA Lead RegulationsBeginning April 22, new regulations will apply to work which disrupts over 6 square feet of interior paint, 20 square feet of exterior paint, or replaces windows in a structure built before 1978. The rule also restricts or prohibits certain practices such as the use of high heat guns, torching, power planning, and power sanding. Any contractor performing such work must take an eight-hour course and receive a renovator certification.
Forty percent of American homes contain lead paint; therefore, this regulation may apply to a significant portion of your work. Because training is limited and the application takes some time to process, it is essential that you learn about this rule and complete the necessary training as soon as possible.
Detailed information is available at the Renovate Right website, www.epa.gov/lead, which includes descriptions of the program, required work practices, the pre-work education brochure, and the application for certification. A calendar of training sites and opportunities is available at The National Center for Healthy Housing’s website at www.nchh.org/training/calendar.aspx. The renovator’s certification must be renewed every five years.
The rule establishes work practice standards that certified renovators and firms must adopt and follow while performing renovation work in target housing and child-occupied facilities. These requirements include providing a pre-work information pamphlet, posting warning signs in the work area, containing the worksite, safe handling and disposal of waste, post-work cleaning, and post-renovation cleaning verification.
OSHA is presently amending the regulations to make the requirements even more strict by:
- Eliminating the right of homeowners to waive compliance in a child-free home, and
- Requiring post-work testing to verify the absence of hazardous conditions
This increased precaution around lead exposure comes on the heels of increased concern about the health impacts of lead not just for children but for adults. The Journal of Environmental Health recently reported that adult-health impacts may occur at lead levels below those regulated by the OSHA’s standards set in 1978.
Standards for safe levels of lead in blood and paint have been lowered. As a result, surfaces previously deemed acceptable may now be considered hazardous. Use caution in accepting the results of prior lead testing when determining whether the new lead safe work-practices apply.
Health Hazards in Moldy and Damp EnvironmentsThe medical and scientific community has recognized the negative health effects of prolonged exposure to excessive levels of moisture and mold. While recognition of these potential health hazards creates business opportunities, it also increases the risk of potential liability for mold health claims against consultants and contractors.
Recently, the World Health Organization published guidelines for indoor air quality that address dampness and mold. Given President Obama’s penchant for regulation, we may see federal mold regulations in the future. Some states already regulate mold in housing through the building and sanitary code. Remediation and restoration contractors need to take extraordinary care whenever dealing with politically and emotionally charged issues such as potential toxic exposures.
Remember that you are dealing with a customer’s perceptions, not necessarily reality. In these situations, take steps to comply with all applicable standards and to document your compliance. It is important to not only do the right things, but to be able to prove this in court years later.
Increased Regulation and Enforcement by OSHA and the EPAHeightened regulation and enforcement by OSHA and the EPA creates risks of fines and even criminal penalties against companies in the restoration industry. OSHA also intends to focus on the individual worker’s risk of injury in the workplace based on his or her body, health, and prior exposure history. These focuses will include increasing use of ergonomic work modifications, such as kneepads, moving carts or hand trucks for material transport, and steps to avoid vibration and repetitive use injuries.
Employers with more than 10 employees must maintain annual logs of workplace injuries and illnesses. OSHA is adding a new column on Form 300 to include musculoskeletal symptoms, including carpal tunnel syndrome, tendinitis and rotator cuff problems, sciatica, herniated disc, and low back pain, even when they do not result from accidents on the job.
In November 2009, NIOSH and the CDC posted comprehensive advice regarding pre- and post-exposure medical screening guidelines for workers responding to hurricane disaster recovery areas. This guidance focuses on the hazards inherent in the working environment and suggests that not all workers should be selected for this type of duty. The screening recommendation focuses on lifestyle factors, like smoking, health factors, such as prior lung disease, and work history data, including prior occupational exposures to respiratory hazards.
With the increasingly complicated and ever-changing rules, use caution to understand the potential to comply in one area, while violating a rule or standard in another area. Be sure to consult a legal professional before implementing a screening program to ensure your policy does not lead to discrimination claims. Additionally, if you make respiratory protection available, be sure that you are complying with OSHA’s fit-testing requirements.
Restoration and remediation contractors are at risk for enforcement actions and liability claims because they are often working in difficult circumstances to assist already distressed customers who may point the blame at the closest target.
The most important steps you can take to protect yourself and your business are:
- Know and adhere to the relevant statutes and regulations
- Employ high-quality work practices, and
- Take meticulous care with your recordkeeping