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Liability lessons
1 Jul, 2004 By: Arthur Cook Pest Management ProfessionalWant to limit your liability from potential civil lawsuits? Remember that providing pest control services to schools in jurisdictions where school IPM laws are in effect presents special challenges. Here are the main steps to take to protect yourself:
- Study state statutes and regulations for where you provide pest control services to schools. Periodically review regulations, because state agencies are “catching up” by promulgating regulations that are either required by or enabled by new legislation. Many states have websites that provide current information on their school IPM programs. Some of those sites contain model school IPM programs.
- Set up separate compliance procedures for each state in which you perform pest control services. Pay particular attention to the types of facilities, the pest control materials and the application techniques that are regulated by the school IPM laws of each state. For example, some states don’t cover private schools and some don’t cover schools of higher learning. Athletic fields and grounds in some states are subject to different rules than the interior of school buildings. Some materials require prenotification in one state but not in another. Some application techniques are exempt in certain states. Posting requirements vary from state to state as to the times of posting and the information required to be posted.
- Know your program liaison. Many school IPM laws require the school or school district to designate an employee as the person responsible for carrying out the schools’ responsibilities under the law. Make sure that your company and every technician servicing any school knows the identity and contact information of the school’s designee.
- Specialize the route. As much as is practical, individual technicians should be identified, trained and equipped to provide pest control service to schools. Avoid substituting technicians who have not been so trained and equipped when the regular technician is sick or on vacation. If volume and route density permit, school IPM technicians should use vehicles dedicated to servicing schools, with equipment and materials limited to those appropriate to school pest control service.
Careful contracts
When contracting with a school or school district for pest control service, make sure that the contract clearly allocates responsibility for notification and posting. For example, where annual notification is required to parents, faculty and staff, your contract should establish a procedure and timetable for you to propose to the school staff a list of materials to be applied during the school year, in time for discussion prior to the annual notification. Similarly, establish a protocol and timetable for communications with school staff where prenotification of a particular application is required — for example, where a pesticide not on the annual notification is to be used due to the identification of an unexpected pest.
Responsibility for mailed notification and posting of application sites should be clearly allocated between you and the school. Usually, it will be the school’s responsibility to perform notification. In states where posting is required for some period of time prior to application, such as California, responsibility for posting will normally be placed on the school. However, even where it is the school’s duty to post the site of application, you must always verify that the site has been properly posted before making the application.
The contract between you and the school should specifically provide that, if you arrive at the site to perform the application and find that the site has not been properly posted, you will not make the application. Instead, you will reschedule and the school will compensate you for the wasted time. Removal of postings by vandals should be a risk allocated to the school.
Often, a school or school district will require that you indemnify the school or school district against claims arising out of your performance of the contract. If it makes this request, the door is open for you to negotiate for a reciprocal indemnity, requiring you to be indemnified if the school or school district fails to uphold its responsibilities in the contract — such as notification or posting.
The Achilles’ heel
Last and most important, you must tailor recordkeeping to the specific requirements of school IPM laws. The average PMP’s Achilles’ heel is more often recordkeeping than any other aspect of the business, opening the door to liability even where application has been carefully performed.
Where school IPM is concerned, it’s extremely important to do detailed and accurate record keeping. School IPM laws frequently include supplemental reporting requirements, but your added recordkeeping should not stop there. Create forms to record the presence of proper posting at the inception of school pesticide applications, and to document all other details governed by the school IPM laws. For example, an application may be exempt from prenotification and/or posting if made to a void between a wall and cabinet, but nonexempt if made to baseboards. Application records should reflect a more exact description of the application site than would be normal in a nonschool environment. PC
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