New OSHA Guidance on Indoor Air Quality
by Jill A. Kotvis
“Please send us a copy of ‘Landlord’s OSHA Plan’ ”—so goes the typical request received in 2011 by several of my clients who own buildings. . Such requests were motivated by the Occupational Safety and Health Administration’s (OSHA) new 2011 indoor air quality (IAQ) guidance (OSHA Guidance). OSHA, OSHA 3430-04, Indoor Air Quality in Commercial and Institutional Buildings (2011). The OSHA Guidance recommends “that building owner/managers develop and implement an IAQ Management Plan to address, prevent and resolve IAQ problems” (e.g. mold, asbestos, chemical pollutants in building materials and vapor intrusion from soil and groundwater contamination), and it recommends to employers who lease space that they “should be familiar with the building management’s program and methods for mitigating or resolving indoor air quality problems.”
Although IAQ is not generally regulated under the Occupational Safety and Health (OSH) Act of 1970, 29 U.S.C. §§ 651 et.seq. (1970), specific types of potential IAQ issues are regulated, and depending on the terms of each lease, those regulations may be the responsibility of a building owner/landlord or the employer/tenant. In general, however, the responsibility for a safe and healthy workplace environment under the OSH Act lies with the employer/tenant. Employers are responsible for complying with OSHA safety and health standards and regulations and, under what is known as the General Duty Clause of the OSH Act, providing a workplace free from recognized hazards that are causing or are likely to cause death or serious harm. OSH Act, 29 U.S.C. § 654 (1970).
As referenced in the OSHA Guidance, the Centers for Disease Control and Prevention (CDC) estimate that the majority of Americans spend approximately 90 percent of their time indoors, and that office workers on average spend approximately 40 hours each week in office buildings. Because of this potential for chronic exposure to whatever may be in the indoor air, the United States Environmental Protection Agency (EPA) has identified IAQ as one of top five most urgent environmental risks to public health.
The OSHA Guidance is OSHA’s and EPA’s latest effort to encourage the commercial real estate industry to focus on IAQ issues. The OSHA Guidance follows the 1997 EPA guidance, An Office Building Occupants Guide to Indoor Air Quality, and the 1991 publication, Building Air Quality, A Guide for Building Owners and Facility Managers, issued by the EPA in conjunction with the CDC, National Institute for Occupational Safety and Health (NIOSH). More recently in 2002, EPA issued a detailed IAQ guidance tool for building owners and managers, and efforts continue today at EPA to finalize a draft guidance on vapor intrusion into indoor air by the fall of 2012. Jill A. Kotvis, Emerging Trend: Vapor Intrusion and its Impact on Real Estate Transactions and Liability, Dallas Bar Association, Real Property Law Section (September 2011).
This latest effort by OSHA appears to be an effort to shift some of the OSH Act responsibility for the health and safety of the workplace environment from employer/tenant to the building owner/landlord. OSHA Guidance disclaims any attempt to create new or alter existing legal obligations. In effect, however, it provides a platform for tenant/employers to draw the building owner/landlord into management and resolution of workplace environment IAQ problems. As such, it may be used as an official OSHA advisory supportive of potential personal injury claims of tenants and their employees against building owner/landlords.
Real estate investors and building owners should become familiar with the details of the OSHA Guidance, and laws, regulations and standards relating to the various IAQ issues. In-depth knowledge of IAQ issues and related government guidance is critical for building owner/landlord’s and real estate investor’s informed decisions on this issue and to minimize IAQ liability risks in negotiating lease and purchase and sale agreements.
Jill A. Kotvis is a solo practitioner practicing environmental law. She can be reached at email@example.com.