Friday, May 29, 2009

Applicability of OSHA Standard Regarding Occupational Exposure to Bloodborne Pathogens to Hotel/Motel Industry

by Christian Stegmaier
cstegmaier@collinsandlacy.com

The Occupational Safety and Health Administration (OSHA) is an agency of the United States Department of Labor. It was created by Congress under the Occupational Safety and Health Act. OSHA’s mission is to prevent work-related injuries, illnesses, and deaths by issuing and enforcing rules (known as standards) for workplace safety and health. OSHA regulations cover most private sector workplaces, including hotels and motels. OSHA actively enforces these regulations. Violation of these regulations or a failure to cooperate with OSHA enforcement activities can result in serious ramifications for an offending workplace, including civil fines and criminal sanction.

OSHA standards are wide-ranging and contemplate the protection of workers operating in the myriad of industries extant in the United States. OSHA standard 29 C.F.R. 1910.1030, “Occupational Exposure to Bloodborne Pathogens,” prescribes safeguards to protect workers against the health hazards from exposure to blood and other potentially infectious materials, and to reduce their risk from this exposure. All employees who could be reasonably anticipated as the result of performing their assigned job duties to face contact with blood or other infectious materials are covered by this standard. To that end, workplaces are compelled by this standard to safeguard their employees from such exposure via training and equipment facilitating proper precautions.

Hotel and motel workers are not medical doctors or other health professionals who work around blood and other infectious materials on a daily basis. However, many hotel and motel workers, such as housekeeping staff, come into contact with blood and other potentially infectious materials in the course of their jobs on a fairly routine basis. The question therefore presents itself: What is the applicability of OSHA regulation 29 C.F.R. 1910.1030 to the hotel/motel industry?

“Occupational exposure” is defined within the standard as reasonably anticipated skin, eye, mucous membrane, or parenteral contact with blood or other potentially infectious materials that may result from the performance of an employee’s duties. The definition of “other potentially infectious materials” includes any body fluid that is visibly contaminated with blood. Urine, feces, sweat, tears, nasal secretions, and vomitus that are not visibly contaminated with blood are not considered to be “other potentially infectious materials.”

OSHA does not generally consider housekeeping staff in non-health care facilities to have “occupational exposure;” nevertheless, it is the employer’s responsibility to determine which job classifications or specific tasks and procedures involve reasonably anticipated contact with blood or other potentially infectious materials. Employers in the hotel/motel industry therefore must take into account all circumstances of potential exposure and determine which, if any, employees may come into contact with blood or other potentially infectious materials during the normal cleaning of rooms, stripping of beds, and handling of laundry from initial pick-up through laundering. Employees who handle - for example - linens soiled with urine that contains visible blood would be occupationally exposed. The employer may designate specific employees to perform the tasks and procedures, if any, that involve “occupational exposure” and train other employees to defer such tasks to employees designated to perform them.

For OSHA compliance purposes, if the agency determines, on a case-by-case basis, that sufficient evidence exists of reasonably anticipated “occupational exposure,” the employer will be held responsible for providing the protections of 29 C.F.R. 1910.1030 to those employees with occupational exposure.


Note: This information represents federal OSHA policy. States with state occupational safety and health programs may adopt standards which are more stringent than federal regulations.


Sources: 29 C.F.R. 1910.1030; “The hotel/motel industry and the bloodborne pathogens standard,” Occupational Safety and Health Administration official interpretation of 29 C.F.R. 1910.1030 (first issued January 26, 1993) (corrected/amended April 6, 2009), http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21002.

This article is intended to provide information on noteworthy legal issues and is not a substitute for legal advice.

Saturday, May 16, 2009

Federal Court Upholds $3.1 Million Verdict in South Carolina Target Case

by Christian Stegmaier
cstegmaier@collinsandlacy.com

A federal court in Greenville has upheld a $3.1 million jury verdict awarded to Rita Cantrell in a retail case that has drawn national attention. Cantrell sued Target Corporation, alleging causes of action for defamation and negligence stemming from her February 26, 2006, visit to a Greenville Target. 

In her pleadings and at trial, Cantrell maintained Target associates had improperly accused her of attempting to use a counterfeit $100 bill at the Target store.  After her visit to the store, Target loss prevention associates issued a BOLO (be on the lookout for) for Cantrell via email to a consortium of local loss prevention managers. Ultimately, the Secret Service became involved, questioning Cantrell at her workplace about the bill.  The Secret Service found the bill not be counterfeit, but instead 30-years-old.  

The verdict included an award of $100,000 for actual damages and $3 million for punitive damages.  Cantrell's only "hard" or special damages was a $200 medical bill.

In a statement issued after the court's post-trial order, Target stated that it regretted what had happened to Cantrell, but would appeal the verdict.   

Indubitably, an appeal by Target will feature the argument that the punitive damages award was excessive.  Recent case law emanating from the United States Supreme Court in the Exxon Valdez litigation supports the proposition that punitive damages should be limited to comport with the actual damages award.  The Exxon Valdez case, however, was a maritime case.  The Target appeal may be one of the first cases where the Exxon Valdez principles are applied in a non-maritime dispute. 

An appeal of a verdict rendered in federal court in South Carolina would be reviewed by the United States Court of Appeals for the Fourth Circuit, which is located in Richmond, Virginia. Appeals to the Fourth Circuit are typically adjudicated within a year of commencement. 

Cantrell v. Target Corp., No. 6:06-cv-02723-BHH (D.S.C. 2008)

News report of order upholding verdict: http://www.heraldonline.com/scnews/state_regional_interest/story/1346023.html

http://www.wyff4.com/news/17792251/detail.html

Pre-trial order denying Target's motion for summary judgment: http://welterlaw.com/blog/wp-content/uploads/2008/11/cantrell-order-msj.pdf

Monday, May 4, 2009

Responding to Employee Blogging

by Christian Stegmaier

Web blogs are ever multiplying - that’s something which is very obvious to any user of the Internet. Further, a growing trend in blogging is the creation of blogs relating to specific corporations, which are maintained by current or prior employees of that corporation or at least rely upon them for content. An article on Forbes.com (“Protecting Employers Against Bloggers” (February 15, 2006)) estimated that perhaps as many as 5% of the American workforce maintain online personal diaries; however, interestingly enough, only about 15% of employers have specific policies addressing work-related blogging. Indubitably, the percentages for each have increased in the ensuing years.

Why should a corporation care about its employees’ blogging activities? Well, the short answer is that reputation is everything to any company, especially those that have spent countless hours and tremendous sums on developing and protecting their brand images. Corporations in the hospitality sector are perhaps the most zealous in building and defending their respective brand images. Blogging is a lightning-fast mode of communication that may damage (or even destroy) a corporation’s reputation or brand image if what is transmitted is hurtful enough.

According to the Forbes.com article, a survey conducted by the Employment Law Alliance, a network of independent employment law firms, showed that 16% of the employees who maintain blogs have posted information that could be considered negative or critical regarding their employer, supervisor, co-workers, customers or clients. This statistic underlines the dangers that may lurk for corporations that are subject of a blog and therefore makes it crucial that employers understand their right to discipline employees who post material on their blogs that is harmful or embarrassing to their employer.

What can corporations do to fight adverse blogging by unhappy and former employees? The first clear step would be to include creating, promulgating, and enforcing a clear policy on the use of blogs by employees.

As described within the Forbes.com article, most blogging policies should contain at least the following provisions:

-Blogging may not be done on company time or with the use of company computers.

-Bloggers must comply with all of the company’s policies, including, but not limited to, the code of conduct and the discrimination and harassment policies.

-Blogs are individual interactions, not corporate communications, and employees must not represent or imply that they are expressing the opinion of the company. Bloggers are personally responsible for the contents of their blogs.

-Never disclose any confidential or proprietary information concerning the company.

-A charge to employees to respect themselves, their selves, their co-workers, and their company. Do not place anything on a blog that will embarrass, insult, demean or damage the reputation of the company, its products and customers, or any of its employees.

Saturday, May 2, 2009

The Explainer: Brief Primer on Applicable Causes of Action in South Carolina Food Claims

by Christian Stegmaier
cstegmaier@collinsandlacy.com

To encourage safe practices, the law imposes liability on food service establishments that serve adulterated food. Causes of action for adulterated food in South Carolina include:

Warranty of Merchantability

The Uniform Commercial Code is a set of rules designed to simplify and modernize the law governing the sale of goods, including food. South Carolina has codified the UCC in its 1976 Code of Laws.

The UCC imposes for the sale of goods where the seller is a merchant, an implied warranty that goods – including food – are merchantable.

Merchantable means the goods are fit for their ordinary purpose and are at least of average quality. For food to be merchantable, it must be fit for human consumption. Inappropriate or foreign objects will render food unmerchantable. Food with harmful bacteria or viruses will render food unmerchantable. Food that is spoiled or undercooked is unmerchantable

Tests for merchantability regarding foreign objects:

-Foreign/natural test: If the object is foreign – that is, unrelated to the components or ingredients of the product – the warranty is breached.

-Reasonable expectation test: Examines whether an object found in food ought to have been anticipated by the consumer.

The trend is towards the Reasonable Expectation test in most jurisdictions.

The warranty of merchantability is implied in all contracts – unless explicitly disclaimed – for the sale of goods made by a merchant. This warrant renders manufacturers, distributors, and sellers virtual insurers that the food is safe to eat.

Proof of liability in warranty cases hinge upon demonstration that the food product was adulterated and the cause of the alleged illness.

Warranty claims require demonstration of privity of contract (i.e., a contractual relationship between the plaintiff and the defendant).

Strict Liability

Suit in tort rather than in contract. To sue in products liability, a plaintiff must prove three elements:

-The defendant sold a product in a defective condition;
-The plaintiff was injured; and
-The injury was caused by the defect.

There is no privity of contract requirement in strict liability claims.

In strict liability claims, food is defective if it is adulterated, contains foreign or unexpected objects; or is otherwise not fit for human consumption.

Negligence

Additional basis for suit. Involves demonstration of proximately caused damages due to breach of duty. Can include allegations of negligence per se due to violations of Health Code/Food Service Establishment Regulations.

This post does not constitute the giving of legal advice or the creation of the attorney-client relationship. For questions you may have regarding this issue, please contact counsel in your jurisdiction.