People have had concerns about indoor environmental quality (“IEQ”) and workplace-related illnesses for decades. However, in the 1980s and 1990s, the general public has become much more sensitive to these issues and much more demanding with respect to their indoor environment. At the same time, the indoor environmental quality in many buildings has declined due to the increased use of office products and building materials that emit air contaminants, the reduction of outside air ventilation for energy conservation and cutbacks in the amount of building maintenance owing to reduced budgets. As a result, building owners and employers have experienced a far greater number of claims and lawsuits related to indoor environmental quality and workplace-related illnesses.
Some attribute the increase in these claims to hypersensitive employees and extremist environmental groups who are pursuing claims with no basis in fact or science. Others believe that at least some of these claims result from poor maintenance of the indoor environment that can cause serious health problems. In either case, it is important for building owners and employers to pay close attention to indoor environmental quality to prevent workplace-related illness claims, whether real or imagined.
In recent years, lawsuits arising from IEQ problems have led to multimillion dollar judgments. In one case involving a Florida courthouse, the building owner sued the contractors and obtained a $26 million judgment to cover repairs to a brand new building. This judgment does not even cover the separate lawsuits of hundreds of employees which are still pending.
In this article, we will provide an overview of IEQ issues, discuss ways to identify workplace-related illnesses and review the primary sources of legal liability for IEQ-related claims. We will also discuss recent examples of toxic tort and premises liability litigation stemming from IEQ complaints and the lessons learned from these cases. We will then discuss what you need to do to avoid becoming a defendant in this type of litigation, including strategies to prevent IEQ problems and avoid or, if necessary, effectively prepare for IEQ litigation.
OVERVIEW OF IEQ ISSUES
Since the late 1970s, the general public, office workers and governmental agencies have become more aware of IEQ issues and related diseases. One of the key events was the discovery of Legionnaire’s disease in a hotel in Philadelphia in the mid-1970s. This bacteria, which can grow in poorly-maintained building heating, ventilation and air conditioning (“HVAC”) systems, often proves to be fatal. The public’s concerns about indoor environmental quality also grew as the country developed more and more environmental laws generally.
Today, IEQ issues arise from a vast range of potential indoor air and environmental contaminants, including environmental tobacco smoke, carbon dioxide and carbon monoxide levels that can build up in poorly ventilated buildings, bacteria and mold that can grow in damp building materials, off-gassing of chemicals from carpets and adhesives, fumes from construction, maintenance and cleaning chemicals, asbestos in building materials and lead in paint or drinking water.
Take Note! In 1996, EPA issued regulations requiring owners of homes built before 1978 to warn prospective purchasers and tenants of any lead-based paint hazards in the home. Although these regulations apply only to residential dwellings, they are making the public more aware of lead exposure hazards, both at home and in the workplace.
Another IEQ concern that has developed in recent years is the effect of exposure to electromagnetic fields (“EMFs”). EMFs are produced by power lines, electrical wiring and electrical equipment, e.g., computers and transformers. Since 1982, a number of studies have reported higher than expected numbers of leukemia cases among “electrical” workers and people who live near high tension power lines. However, these studies are plagued by puzzling inconsistencies and questionable methodology. For example, one study of welders showed no increase in leukemia, yet welders have some of the highest EMF exposures of any type of worker. Recently, reports from three major studies of electrical workers indicated no strong, consistent evidence of an association between EMFs and leukemia. Most reviews conclude that existing evidence does not prove that EMFs cause cancer. Despite this evidence, many industrial employees and even office workers who work with computers or near transformers still have significant concerns and fears about EMF exposures.
Although some types of IEQ exposures have questionable health effects, there is no question that there is a strong correlation between good indoor environmental quality and the health and productivity of workers. IEQ problems are estimated to cost American businesses $10 to $15 billion annually as a result of lowered productivity, absenteeism, medical costs and workers’ compensation claims. The United States Environmental Protection Agency (EPA) has stated that indoor air quality is one of the five most significant environmental threats to human health, more important than outdoor air pollution. The reason for this is that indoor air pollution is often 5 times higher and can be 100 times higher than outdoor air pollution.
Take Note! Recent surveys indicate that 24% of office workers are dissatisfied with the quality of the indoor air in their workplaces.
In light of the real costs of some IEQ problems and the perceived health threats of others, it is important for building owners and employers to be able to effectively address IEQ issues. However, this can be a great challenge because it is often difficult to identify and recognize IEQ-related illnesses.
IDENTIFYING IEQ-RELATED ILLNESSES
Some diseases and illnesses that result from indoor environmental quality are easily diagnosed and identified. In these instances, handling the medical, legal and building maintenance or repair issues arising from the illnesses can be relatively straightforward and non-controversial. However, many IEQ-related illnesses are much more difficult to identify and diagnose. These types of diseases are highly controversial and pose exceedingly difficult issues for building owners, employers and employees alike.
The primary IEQ-related illnesses are placed into the following three categories:
These are clinically diagnosable illnesses where there is a clear and direct link between the illness and an identifiable building source. Generally, these diseases are less controversial, easier to identify and pose more straightforward building maintenance and repair issues. These diseases include:
. Legionnaire’s Disease: a severe multisystemic illness caused by Legionella pneumophilia bacteria that can affect the lungs, gastrointestinal tract, central nervous system, and kidneys. Legionnaire’s Disease continues to be a very serious problem with more than 60 new cases identified in the United States every day.
. Hypersensitivity diseases: diseases characterized by allergic responses to antigens. These diseases associated with IEQ are hypersensitivity pneumonitis, allergic asthma, allergic rhinitis, and allergic aspergillosis. Allergic asthma and allergic rhinitis occur only in genetically predisposed individuals, typically after years of exposure to low levels of antigen.
. Humidifier fever: a form of pneumonitis associated with allergic reaction of the lungs to microbes found in humidifier reservoirs, air conditioners, and air cooling equipment. This disease produces flu-like symptoms similar to hypersensitivity pneu-monitis, but does not cause long-term lung damage.
Sick Building Syndrome (“SBS”)
SBS is a phenomenon where a significant number of building occupants experience a variety of health and/or comfort effects linked to time spent in a particular building, but where no specific illness or causative agent can be identified. Symptoms in sufferers often include headache, eye irritation, and respiratory irritation.
Multiple Chemical Sensitivity (“MCS”)
MCS is a term applied to individuals complaining of recurrent episodes of generally nonspecific symptoms associated with multiple organ systems, attributable to environmental chemical exposures. Generally, those with MCS claim that they are ill due to chronic low level exposures to environmental toxins or to a high level exposure for a short duration. The primary suspected agents for causing MCS are pesticides, solvents, resins, and formaldehyde. Once an individual has MCS, they typically claim that their exposures have caused them to become ultra-sensitive to very low levels of environmental toxins and even non-toxic substances, such as deodorant soap. This condition is controversial in the medical community because its cause is not well documented or understood.
In addition to these standard categories of IEQ-related illnesses, employees may also complain of other diseases or illnesses, for example, cancer, that they claim are a result of indoor environmental conditions, including exposure to asbestos, lead or EMFs. Asbestos-related diseases have been recognized for a number of years and have led to ruinous litigation against building materials manufacturers and insurers. Oftentimes, asbestos litigants will attempt to bring claims against building owners, especially when the building materials manufacturers are bankrupt. Lead exposure issues have been gaining more prominence recently as people have become more aware of the health effects of lead exposure. In commercial buildings, lead exposures are mostly related to lead in drinking water as a result of lead in faucets and exposure to lead in paint as a result of construction activities. Sometimes, several building occupants experience unusual or severe health problems, e.g., cancer, over a relatively short period. EMFs or other IEQ-related conditions can be blamed for these clusters of health problems, and can produce tremendous anxiety among building occupants.
As noted above, recognizing IEQ-related illnesses can be extremely difficult. Building occupants may experience IEQ problems as discomfort, irritation, or illness. Rather than clearly defined illnesses, the effects of poor IEQ are often nonspecific symptoms, such as headaches, dizziness, mucous membrane irritation, nausea and sinus congestion.
In many cases only a minority of the building occupants will be affected by IEQ problems. Building occupants who are allergic, have preexisting respiratory or cardiovascular conditions, e.g., asthma, have suppressed immune systems, e.g., people on chemotherapy, or wear contact lenses are particularly susceptible to the effects of indoor air contaminants.
Many building-related complaints are based on discomfort. This includes temperature and humidity related issues, as well as odor complaints. Environmental stressors, such as improper lighting, noise, vibration, overcrowding, ergonomic stressors, and job-related psychosocial problems, can also produce symptoms that are similar to those associated with poor air quality.
The difficulty in recognizing IEQ-related illnesses has been emphasized by a recent study by Cornell University researchers. These researchers conclude that many IEQ-related illnesses are not simply environmentally-induced disorders that arise as a consequence of exposure to air pollutants. Instead, personal, psychological and occupational variables may be of considerable importance in these illnesses. The study indicates that over 76 percent of workers in air-conditioned buildings with acceptable indoor air quality report at least one work-related illness per month.
Despite the difficulty in recognizing many IEQ-related illnesses and linking the illness to an identifiable building source, there can be significant legal liabilities associated with IEQ claims.
SOURCES OF LEGAL LIABILITY
Building owners and employers face legal liabilities for IEQ claims from a variety of sources, including common law negligence, California’s Proposition 65, governmental regulations, contractual and warranty claims based upon lease obligations and landlord-tenant laws, workers’ compensation laws and federal and state disability laws.
One of the most important sources of liability is negligence. Generally, building owners and managers have a common law duty to maintain property under their control in a reasonably safe condition for use by tenants and others lawfully on the premises. If they fail to do so, injured parties can bring both personal injury and property damage claims.
One of the most difficult aspects of IEQ claims is determining whether the building is the cause of the illness. Given the controversy over some IEQ-related illnesses and their similarity to other common diseases, even the medical experts often cannot make a certain diagnosis. This makes proving and defending claims exceedingly difficult.
The duty to maintain a safe building encompasses a number of obligations. Architects and engineers have an obligation to design and contractors have an obligation to build a building that will deliver a safe air supply and use building materials that will not endanger the health of the occupants. Building owners have an obligation to select properly trained and competent architects, engineers and contractors. Building owners and maintenance contractors also have an obligation to properly maintain heating, ventilation and air conditioning systems and other building materials to ensure a safe building environment. Furthermore, building owners and managers are required to monitor tenant activities to ensure that tenants do not engage in any activities that could endanger the health of other tenants or visitors to the building.
One of the primary issues in negligence claims is the applicable standard of care. In order for a plaintiff to bring a successful negligence claim for an IEQ-related illness, the plaintiff must show that the building owner or manager breached the applicable standard of care. However, it is often difficult to determine the appropriate standard of care.
Generally, the building owner or manager must ensure a safe environment and acceptable indoor air quality. However, it is very difficult to determine what is a “safe” environment or “acceptable” air quality. The United States Occupational Safety and Health Administration (“OSHA”) has issued permissible exposure levels (“PELs”) for a number of air contaminants. However, these levels are rarely reached in office buildings, even those where a substantial number of building occupants complain of IEQ-related illnesses. Accordingly, they are not very useful in determining what is a safe environment or acceptable air quality, and, thus, are not very useful in setting the appropriate standard of care.
Apart from the OSHA PELs, there are very few governmental regulations that apply to indoor environmental quality. In 1994, OSHA proposed a standard that would have regulated indoor air quality. However, in the face of staunch opposition from a number of interest groups, controversy surrounding the medical and scientific assumptions and serious questions about the benefits of the standard, OSHA was forced to suspend development of the standard.
If adopted, the OSHA Indoor Air Quality (“IAQ”) Standard would have required building owners to, among other things, do the following:
· Develop a written IAQ program
· Designate a responsible person for IAQ compliance
· Adequately maintain HVAC systems
· Conduct IAQ inspections
· Provide IAQ training to maintenance workers
· Control tobacco smoke, chemicals and microbial contamination
· Maintain records of inspections, maintenance and employee complaints
In the absence of governmental regulations, the most significant development in terms of setting the appropriate standard of care for indoor environmental quality is the Draft Ventilation for Acceptable Indoor Air Quality proposed by the American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc. (“ASHRAE”). Although ASHRAE standards do not have the force of law, they do establish an industry standard of care for architects, engineers, building owners and managers. It is possible that the ASHRAE standard will become a key standard by which the actions of building owners, managers and maintenance engineers will be judged.
In California, building owners, managers and employers must also be aware of the requirements of the Safe Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65”). Under this law, employers must warn employees and visitors of any chemicals used in the workplace that are known to the State of California to cause cancer or to be a reproductive toxin. Failure to provide such warnings could subject the building owner or employer to civil and criminal penalties.
Building owners and tenants often have IEQ-related responsibilities as a result of warranty and other provisions in their leases. Even without specific lease terms, there are obligations under state landlord-tenant laws pertaining to constructive eviction that can be triggered by IEQ problems. Building owners and employers must also be aware of additional obligations stemming from workers’ compensation laws and federal and state disability laws.
Between landlords and tenants, the representations, warranties and duties set forth in the lease will often be the main recourse for both parties attempting to resolve an IEQ problem. Among other things, leases typically require building owners to properly maintain the HVAC systems and restrict the use of hazardous substances by tenants. Both building owners and tenants should thoroughly review their leases to ensure that they contain adequate IEQ protections.
RECENT IEQ CASES
Over the past few years, there have been a number of lawsuits stemming from IEQ problems. Many of these lawsuits have led to multimillion dollar judgments against defendants, including building owners, architects, engineers and contractors.
One of the most ironic IEQ lawsuits involves the EPA headquarters in Washington, D.C. In 1987, the EPA headquarters was renovated and, soon thereafter, was reoccupied by EPA employees. Almost immediately, a number of employees began to complain about persistent coughs, scratchy throats, migraine headaches, sinus infections, sick building syndrome and multiple chemical sensitivity. These employees claimed that their illnesses resulted from exposure to solvents, paint, adhesives, fumes from newly installed carpeting and secondhand smoke. They argued that the building owners and managers were negligent because they failed to provide adequate ventilation and scheduled renovation work near occupied offices.
On the basis of these complaints, the plaintiffs received jury verdicts in the hundreds of thousands of dollars. Some of these verdicts were eventually overturned by the trial judge on the basis of inconsistent evidence. However, those verdicts related to claims of physical injury were allowed to stand.
Polk County, Florida Courthouse
In this case, a new $37 million courthouse was constructed in Polk County, Florida. When county workers began to work in the courthouse, they complained of respiratory illnesses caused by exposure to molds and mildew growing in the building’s HVAC system. Eventually, over 200 employees brought workers’ compensation claims and the building had to be evacuated. As a result, the county sued the contractors and their insurers and obtained a $26 million dollar judgment to cover the cost of repairs to the building and relocation expenses. Hundreds of lawsuits by the county employees against the contractor are still pending.
DuPage County, Illinois Courthouse
In another major courthouse case, a new $53 million courthouse was constructed in DuPage County, Illinois in 1991. After the building was occupied, courthouse employees complained of general respiratory illnesses and sick building syndrome. Twenty employees were eventually hospitalized and the building was evacuated in September 1992.
The building owners in this case sued the architects and contractors to recover the $3.4 million in repair costs for the building’s ventilation system. However, the building owners lost the suit because the defendants were able to show that the illnesses were caused by poor maintenance of the ventilation system, a responsibility of the building owner.
San Joaquin County District Attorney’s Office
In 1989 and 1990, the District Attorney’s Office in San Joaquin County, California, was renovated with new carpet and paint. After workers moved into the space in February of 1990, some began to complain that the HVAC system was not working properly and that there was significant off-gassing of chemicals from the new carpet which was exacerbated by the malfunctioning HVAC system. In May of 1990, 14 clerical workers were removed from the office on doctors’ orders. These workers then sued the building owners claiming multiple chemical sensitivity, headaches, memory loss and eye irritation. The plaintiffs obtained judgments ranging from $15,000 to $900,000 per plaintiff. The case is currently on appeal.
These cases clearly show that the costs of poor indoor environmental quality can be extremely high, not even counting business interruption or employee morale costs. Accordingly, it is important that building owners, managers and employers act diligently and aggressively to both prevent IEQ problems and to respond to IEQ complaints when they arise.
HIRING PROFESSIONAL ASSISTANCE
In some instances, IEQ complaints can be relatively straightforward and easily remedied by building engineers and employers, i.e., complaints related to temperature and ventilation. However, other IEQ problems can be exceedingly complex to identify and resolve. In these instances, building owners, managers, and employers should seek the assistance of a competent, qualified IEQ consultant to investigate, diagnose, and remedy IEQ issues.
Several criteria should be applied when selecting a consultant, including expertise, communication skills, investigative approach, cost, and reputation. Competent professionals will:
· Ask probing questions
· Clearly articulate a phased approach to investigating the IEQ problem
· Emphasize observations and communication rather than broad-based measurements
· Be experienced in identifying and resolving IEQ issues
· Provide a well written proposal discussing objectives, methodology, data collection, and criteria for decision making about additional information gathering.
INVESTIGATING AND RESOLVING IEQ PROBLEMS
An IEQ investigation begins with one or more reasons for concern, such as occupant complaints. Some complaints can be resolved with a minimum of effort by asking a few common sense questions. However, some problems could require a detailed evaluation by an IEQ professional. The IEQ investigation consists of information gathering, hypothesis formation, and hypo-thesis testing.
The components of an IEQ investigation typically include the following:
Valuable information about IEQ problems can be obtained by listening to occupants regarding their complaints, symptoms and perceptions of the building. This information can be used to identify spatial and temporal patterns, suggest directions for further investigation, and indicate potential measures to reduce or eliminate the problem. Interviews should be conducted with both affected and unaffected occupants. In this way, conditions in the affected area can be compared to conditions in similar building locations where there have been no complaints.
Ventilation System Evaluation
IEQ complaints often arise because the quantity or distribution of outdoor air is not adequate to serve the ventilation needs of the building occupants. Problems may also be traced to air distribution systems that are introducing outdoor air contaminants or transporting pollutants within the building. Therefore, the evaluation should include an investigation of the location of the outdoor air intakes in relation to potential pollutant sources, system cleanliness, air distribution patterns, exhaust system, quantity and adequacy of outside air and controls for the outside air supply.
Chemical and Microbiological Evaluation
Air sampling for specific pollutants is most effective as an investigative tool when the information obtained during occupant interviews and the ventilation system evaluation strongly suggest that a chemical or biological agent may be the cause of the complaint. Sampling should be conducted in the area where complaints have been registered, outdoors, and in an indoor control location, i.e., a complaint-free area of the building. Chemicals measured typically include carbon monoxide, carbon dioxide, formaldehyde, and total volatile organic compounds. Other compounds, like hydrogen sulfide, may be measured when there are specific reasons to suspect that these contaminants may be present. Microbiological air sampling programs will frequently include viable (living) spores, non-viable (dead) spores, and bacteria.
As previously stated, many IEQ problems are related to occupant comfort. Temperature and humidity levels are important indicators of ventilation system effectiveness and occupant load. Measurements should be made frequently by building maintenance personnel, and are an integral part of any IEQ investigation.
Taking a phased diagnostic approach to investigating IEQ issues will increase the likelihood of successfully identifying the source of occupant complaints. Effectively resolving IEQ issues is dependent on responding quickly to occupant complaints, seeking competent professional assistance where necessary and implementing mitigation measures on a timely basis.
PREVENTING IEQ PROBLEMS
Preventing IEQ problems begins with proper building design. The building’s original intended function should be reviewed in light of current use. Appropriate modifications to the building’s ventilation system should have been performed to accommodate any changes in building function. The ventilation system should be functioning according to specifications.
Managing a building for good IEQ involves reviewing and amending current practices to achieve the following:
· Proper operation and maintenance of ventilation system equipment
· Periodic monitoring of staff, tenants, contractors and other building occupants who may have an impact on IEQ
· Maintaining communications with occupants so that management will be informed of complaints about IEQ in a timely way
· Educating staff, occupants and contractors about their responsibilities in maintaining adequate IEQ
· Identification of those planned projects that could affect IEQ and management of these projects so that good IEQ is maintained
· Maintenance of building ventilation systems in accordance with the ASHRAE standard on Ventilation for Acceptable Indoor Air Quality
Finally, developing a written IEQ management plan will assist those responsible for building maintenance in systematizing and fully incorporating IEQ considerations into routine procedures. Building owners and employers have numerous options in the precise manner in which they assign responsibility for operations, recordkeeping, purchasing, communications, planning, and policy-making. However, each of these elements is a critical component of an effective IEQ management plan.
STRATEGIES FOR AVOIDING AND HANDLING LITIGATION
Despite a building owner or employer’s best efforts, sometimes it is impossible to avoid IEQ complaints. To prevent litigation as a result of these complaints or to prepare for litigation if it cannot be avoided, building owners and employers should promptly undertake to assess and respond to complaints and develop systems for creating and maintaining necessary documentation.
A key element to avoiding IEQ litigation is to quickly and thoroughly investigate all IEQ complaints. By doing so, the building owner or employer may be able to resolve the complaint before anyone feels the need to pursue litigation. If litigation is inevitable, the information obtained in this early investigation can be critical in defending the litigation.
Building owners and employers must also ensure that they have systems in place for documenting IEQ maintenance and inspections, IEQ complaints and all efforts to resolve IEQ problems. These documents should include written reports of the efforts to monitor contractors and tenants to ensure that they do not introduce IEQ contaminants into the building. Furthermore, it is important that original design drawings for the building, construction documents and as-built drawings be maintained for the life of the building.
If a tenant learns that their employees or visitors are complaining of IEQ problems, the tenant must be sure to notify, in writing, the building owner or manager as soon as feasible. This not only gives the person responsible for building maintenance an opportunity to resolve the issue before it leads to a claim, it also puts the building owner or manager on notice of the problem. This will make it much easier to prove a negligence claim later on if the building owner or manager fails to correct the problem in a timely manner.
Building owners and employers must also be prepared to notify certain other third parties in order to protect their legal rights. If the building owner or manager receives an IEQ complaint that they believe could lead to litigation, then they must be sure to file a claim with their insurer as soon as possible. This will not only preserve the claim for insurance purposes, it will also trigger the insurer’s duty to defend the owner or manager in a lawsuit.
Employers who receive complaints from their employees about IEQ prob