Mold: A Serious and Frustrating Safety Issue for Employers and Business Owners
by Rachel L. Krinsky, Esq. and Kenneth R. Plumb, Esq., Berchem, Moses & Devlin, P.C.
In recent years, mold has become a serious and frustrating issue for businesses, schools and homeowners. An increasing number employers and business owners have been forced to face unanticipated environmental health and safety issues as a result of mold growth and infestation. In some cases, the fact that a problem exists may not manifest itself until mold growth is pervasive in the workplace. Employers and business owners may face a multitude of issues as a result of mold growth and contamination in commercial buildings, including: negative impacts on the health of employees; Sick Building Syndrome and other structural damage issues; the expense of investigation, environmental testing and/or remediation; legal pitfalls and litigation; and negative publicity.
Background Information on Mold
It is estimated that between 50,000 and 250,000 species of fungi exist on earth. Over 1,000 forms of mold can be found in the United States. (State of the Science on Molds and Human Health: Statement for the Record Before the Subcomms. on Oversight and Investigations and Housing and Community Opportunity of the House Comm. on Financial Services, 2002.) Mold can be found everywhere, both indoors and outdoors. The most common forms of indoor mold include Cladosporium, Penicillium, Aspergillus and Alternaria. Mold essentially needs three things to survive: moisture, an organic material as its food source, and time to germinate. Moisture in the workplace environment may result from improper ventilation, flooding, steam, high humidity and leaks (roofs, pipes, windows). Indoor mold feasts upon dead, moist organic matter, including wood, paper, dust and fabrics. When these conditions exist, mold produces seed-like spores that are tiny enough to spread through the air and multiply. Mold can be any color, including: white, orange, green, brown or black. It may appear slimy or fuzzy. Even if mold is not readily visible, you may notice a mildew, musty or earthy smell. Mold growth may be found on or under carpets, ceilings, walls, floorboards, behind wallpaper, in crawl spaces, or in heating, ventilation and air-conditioning (HVAC) systems. In cases where mold growth transpires in areas that are not readily visible and where odors are stifled, the first hint that a mold problem exists may come from employee health complaints.
Most people have no reaction to mold exposure. However, individuals with higher levels of sensitivity may exhibit symptoms as a result of mold exposure. Those most likely to suffer symptoms include: infants and children, the elderly, diabetics, pregnant women, those with allergies or existing respiratory conditions such as asthma or lung disease, and those with already compromise immune systems (e.g., AIDS, leukemia, organ transplant recipients, those receiving chemotherapy). Most symptoms are temporary. When the individual leaves the mold-laden environment, symptoms diminish or vanish. The most common symptoms include allergic reactions, allergic rhinitis or sinusitis, aggravated asthma, headache. Less common yet reported symptoms include: fatigue and lethargy, muscle aches, fever, difficulty concentrating and memory loss, and mood changes. There have also been allegations of more serious, though rare, symptoms, including: hypersensitive pneumonitis, fungal infections (particularly invasive pulmonary aspergillosis, aspergilloma, allergic bronchopulmonary aspergillosis), and even cancer.
Mold has also been blamed for structural damage. When the right environmental conditions exist, mold growth may cause wallpaper and floor boards to buckle, or cause wood and other cellulose building materials to disintegrate. Mold-related contamination and disintegration of interior building structures is commonly referred to as “Sick Building Syndrome,” particularly when structural damage is coupled with physical harm to building inhabitants or occupants.
Standards and Exposure Limits
At this time, there are no federal statutory or regulatory standards regarding levels and limits on exposure via physical contact and inhalation. Congress has considered enacting legislation that would begin to study the effects of mold and to consider the viability of implementing programs and standards to address mold in various indoor environments. The United States Toxic Mold Safety and Protection Act of 2002 (also known as the Melina Bill) was introduced on June 27, 2002, by Representative John Conyers, Jr. as H.R. 5040. As of the date of this overview, the Bill has been referred, and remains in various House and Senate Subcommittees.
As explained by the New York City Department of Health, “[s]usceptibility varies with genetic disposition, age, state of health, and concurrent exposure. For these reasons, and because measurements of exposure are not standardized and biological markers of exposure to fungi are largely unknown, it is not possible to determine ‘safe’ or ‘unsafe’ levels of exposure for people in general.” (Guidelines on Assessment and Remediation of Fungi in Indoor Environments, New York City Department of Health, January 2002.)
As of the date of this article
(May 2003), three states have enacted statutes, and nine states have proposed legislation since January 1, 2003, to deal with mold-related issues. The Maryland and New Jersey State Legislatures recently passed resolutions that direct State officials to study the effects of various types of mold and the impact on indoor environments. Connecticut, New York and Massachusetts have proposed legislation that currently sits in legislative committees. California is the only state to have enacted legislation that over time will establish actual standards for assessment, exposure limits, and remediation.
Mold Litigation
Mold litigation has increased in recent years to the point where the legal community has begun to speak of a “mold rush” of litigation. With all of the publicity mold litigation and fear of mold has elicited, it has been said that mold is the new asbestos. Mold-related claims are typically brought under the following theories:
• Workers’ Compensation
• Americans with Disabilities Act (ADA)
• Individuals with Disabilities Education Act (IDEA)
• Insurance coverage
• Landlord/tenant
• Products liability/strict liability
• Nuisance
• Professional malpractice
• Breach of contract/breach of express and implied warranties
• Real estate: failure to disclose
Causation and Evidentiary Problems
Because there are no established federal or state standards regarding exposure, the parties to litigation must establish for themselves when, how, and if exposure to mold caused the ailments claimed by the plaintiff. In the case of suits brought by employees against their employers, typically, employees will argue that informal standards exist in the scientific community, and that studies have shown that mold causes the ailments in question. Employers, on the other hand, will argue that such studies are not conclusive, and that alternative causes to mold in the workplace caused the employee’s condition. It is then up to the court to determine whether to admit such evidence, and to determine the amount of weight that should be given to the expert testimony and studies regarding mold and health concerns. See, i.e., New Haverford Partnership v. Stroot, 772 A.2d 792 (Del. Supr. 2001); Nicholson v. Mohawk Valley Community College, 711 N.Y.S.2d 542 (2000).
To this point, mold litigation in New England has been limited, although many expect this to change given our susceptibility to fluctuating and sometimes dramatic weather conditions.
Many state agencies, and several federal and private agencies and universities, have created informal guidance for homeowners, schools, employers, and business owners regarding mold, Sick Building Syndrome, and indoor air quality.
The following publications and resources may be useful to employers and building owners:
- “Mold Remediation in Schools and Commercial Buildings” [EPA 402-K-01-001, March 2001]
- “Building Air Quality: A Guide for Building Owners and Facility Managers” [EPA 402-F-91-102 or DHHS (NIOSH) Publication No. 91-114, December 1991]
- “Questions and Answers on Stachybotrys chartarum and other molds,” Center for Disease Control (CDC), available at www.cdc.gov/nceh/airpollution/mold/stachy.htm.
- New York City Department of Health, Guidelines on Assessment and Remediation of Fungi in Indoor Environments (January 2002).
- Marian L. Heyman, MPH, “Indoor Air Quality Testing Should Not Be The First Move,” Environmental Epidemiology & Occupational Health Division, Connecticut Department of Public Health (December 2001).
- Richard Crans, “IAQ Tips From Connecticut OSHA’s Consultation Program,” 5 Occupational Airways 2, Connecticut Department of Public Health (December 1999).
Prevention, Prevention, Prevention!
As with most issues that arise in the employment environment, prevention is key. Unfortunately, many employers and business owners overlook or ignore potential issues until they become problems. As a result, these employers and business owners face legal consequences, the expense of remediation, publicity nightmares and human resources complications that could have been avoided. Instead, employers and business owners should perform informal inspections of their premises on a regular basis. Leaks and water damage should be addressed as soon as possible. HVAC and other ventilation systems should be cleaned and serviced periodically. Employee complaints and comments regarding health concerns should be taken seriously. When mold is found, it should be cleaned up as soon as possible in a manner that protects employees, building occupants and visitors. As with most problems that arise in the employment environment, a little prevention can go a long way.
Rachel L. Krinsky is an associate and Kenneth R. Plumb is a partner at Berchem, Moses & Devlin, P.C. For more information, please contact them at (203)783-1200 or via e-mail at rkrinsky@bmdlaw.com and kplumb@bmdlaw.com respectively.
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