Have you checked your water management policies within the last 12 months? The bar for protecting your building occupants from Legionella and other waterborne pathogens has risen a few notches. Falling short can affect your organization’s image, legal risk and even your career.
Government agencies and industry groups advising building operators to maintain their water systems to minimize Legionella is nothing new. However, in the last few months, the warnings have become louder and the consequences more serious.
This increased urgency started to build in June 2015, when ASHRAE released the final version of its Legionella standard, ANSI/ASHRAE 188-2015. The new standard reached consensus among government agencies and industry groups, not only about the need for Legionella prevention in building water systems, but also about how to approach it – namely, implementing a written plan for managing building water systems. ASHRAE outlined essential components that a water management program must have, including procedures for validating the effectiveness of the plan in controlling Legionella bacteria.
Just a few days later, in July 2015, an outbreak of Legionnaires’ disease in New York City killed 12 people and sickened 120. City and state officials responded quickly by adopting emergency ASHRAE 188-related regulations for minimizing Legionella risk associated with cooling towers.
The prevention train picked up speed in 2016. New York City and state updated their regulations and made them permanent. In June, the Centers for Disease Control and Prevention (CDC) reports about the rise in Legionnaires’ disease cases and the need for better building water management caught the attention of the mainstream media, which immediately published stories highlighting the responsibility of building owners and managers.
BOMA issued a statement as well, announcing that the CDC “asks building owners and managers to adopt newly published standards that promote Legionella water management.”\
How are you doing with risk management related to your water systems? Test your program with the following six questions.
1) Are you in compliance with regulations?
Breaking laws can result in fines and cripple your defense in a lawsuit brought by someone claiming to have contracted Legionnaires’ disease at your facility. Compliance with portions of ASHRAE 188 is required by law only in New York. However, regulations have been proposed in New Jersey and other states may adopt laws as well, so check with your state’s health department.
2) Have you established a water management program (WMP) per ANSI/ASHRAE Standard 188-2015?
If you think you are saving your organization money by waiting until you are forced by law to establish a WMP, you might be fooling yourself. Implementing a good WMP benefits building operators as well as the people who avoid waterborne illness. It’s not only the right thing to do for the people who spend time in your buildings, it’s smart for your organization.
Building operators that manage water systems per ASHRAE 188 demonstrate good corporate citizenship. Just as you ultimately reap rewards by paying employees fairly, protecting the environment and establishing rules for a positive workplace, you also gain by managing your water systems to protect the people in your buildings from Legionella bacteria. Doing it before the standard becomes law gives you the opportunity to tell your employees, guests, residents, tenants or patients you’ve taken steps to give them a safe, healthy environment, even though it’s not required by law.
Preventing Legionella also protects you against loss of business, brand damage and legal risk. Failing to implement a good water management program has resulted in lawsuits against property owners and key personnel.
In litigation pertaining to Legionnaires’ disease, several guidelines have been used as a basis for determining “standard of care” – whether the building operator exercised reasonable care in preventing disease associated with their water systems. Now, however, ASHRAE 188 is the primary document by which standard of care will be determined.
3) Do you know whether your liability insurance covers Legionella-related claims?
Building operators used to be able to rely on their insurance coverage to pay the settlement (or in rare instances, the jury verdict), attorney fees, expert fees and other expenses associated with a suit over Legionnaires’ disease. But in recent years, some insurance companies have attempted to deny coverage based on policy exclusions (e.g. for pollution or bacteria) – sometimes successfully, sometimes not.
Find out whether your liability policy will pay Legionella claims. You will probably be told, “It depends.” With some digging, though, you can find out the conditions on which it depends. The knowledge can help you protect your organization.
4) Are you consistent among your properties?
ASHRAE 188 requires WMPs for cooling towers, whirlpool spas, ornamental fountains, water features, misters, air washers and humidifiers, and plumbing systems in buildings with certain risk factors. If you manage several buildings, some may require a WMP per ASHRAE 188 and some may not. Some may be in New York or other areas with regulations and some not.
Be consistent among your buildings with respect to control measures. Let’s say you have 20 buildings in your portfolio, 15 of which require a WMP because of ASHRAE 188 or state regulations and 5 that do not. Implement control measures in the 5 that are consistent with the 15 for like-kind equipment.
For example, if the WMPs for the 15 buildings outline control measures for cold water storage tanks, implement those same measures for cold water storage tanks in the other 5. If the WMP for the 15 buildings has flushing procedures for infrequently used faucets, do the same in the other 5 buildings. Otherwise, if a case of Legionnaires’ disease occurs, how will you explain why you implemented control measures in buildings 1-15 but not for the same equipment in buildings 16-20? Saying ASHRAE 188 did not require a WMP is not a good enough answer.
5) Can you defend your policies based on expert opinions?
An attorney’s case against your water management practices is only as strong as the opinion of a qualified expert. The same goes for your defense. It’s not enough to have just any WMP. It must be comprehensive and defensible.
6) Are you doing what’s in your plan?
A perfect car owner’s manual will do nothing to ensure your car lasts long and runs well. You have to implement the procedures outlined in the manual. It’s similar with WMPs. Only what you actually do to your water systems will minimize the risk of disease. The words in your WMP, unless acted upon, will do nothing.
The format, medium and flow of your WMP is almost as important as the content. It needs to be so easy to follow that it’s almost fun to implement and document the plan.
Implementing your WMP and documenting the procedures are crucial for legal risk, too. For standard of care, the only thing worse than not having a WMP is having one but failing to implement it. It makes an easy case for the plaintiff’s attorney.
How did you score? Since the test covers only the basics, passing requires a yes to all six questions. If you failed, don’t panic; just get started on changing any nos to yeses.
Fortunately, establishing and implementing a top-notch water management program does not take a burdensome amount of time and money if done intelligently, and it ultimately pays back. The benefits of protecting your organization and the people who spend time in your buildings are well worth the investment.
Matt Freije is the founder and CEO of HC Info, a provider of cloud-based water management plans and training. He has taught Legionella seminars in five countries, served as an expert in more than 60 lawsuits related to Legionnaires’ disease and written two books. His water management and training materials are used by hundreds of building operators, water experts, and health officials worldwide.