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Law360 (April 20, 2020, 4:11 PM EDT) --
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| Steven Moore |
As many companies, and even a few law firms, regurgitated all the purported benefits of open offices — that is, collaboration and improved communications (purported advantages that were completely dispelled by Ethan S. Bernstein and Stephen Turban in their 2018 study),[1] and by some sort of prestidigitation the type of space millennials and Generation Z unconsciously desire — most truly saw such designs as simply a way to reduce the cost of their floor footprints and allow for careful watch over their employees.
Unfortunately, many adopted open designs without any consideration of transmissibility of disease between employees. With the advent of COVID-19, one questions whether such designs may now act as a significant impediment to the full reopening of many modern offices.
It was recently reported that, in light the SARS-CoV-2 virus, workers have become "freaked out" about returning to their open offices.[2] The parallel concern may be raised by those that bought into the open office concept over the past 20 years — that is, while many may have avoided contagion among their ranks initially by having had enough time to send their employees off to work remotely, they also may be "freaked out," with respect to potential negligence actions after bringing their employees back into such environments with a potentially deadly disease that is very transmissible with no widespread immunization in immediate sight.
The common law of negligence requires persons owing a duty of care to another to conform to certain standards of conduct. The Restatement (Second) of Torts defines negligence as "conduct that falls below the standard established by the law for the protection of others against unreasonable risk of harm."[3] Negligence can result from actions and omissions when there is some duty to act.
Many state codes, several government statutes, common law and agency law principles[4] require an employer to maintain a safe workplace. A number of states' exclusivity provisions bar common law negligence claims against employers in certain conditions (such as when a federal right to compensation exists). However, a significant number do not.
Commentators looking in detail as to an employer's vulnerability for negligence suits in communicable diseases have concluded that liability can attend to employers who know their employees are subject to the dangers of a communicable disease and do not undertake reasonable precautions to mitigate such risk.[5] The duty rises as the danger of the communicable disease rises.
Indeed, the ability of an employer to disclose the condition of a fellow employee can override privacy statutes when the diseases can lead to death and is highly communicable (such as with SARS-CoV-2). Applying U.S. Circuit Judge Learned Hand's breach of duty formula in the 1947 decision United States v. Carroll Towing,[6] one can see the gravity of loss times the probability of loss well exceeds the burden of precautions.
It should be noted that the open office concept was likely the predominant office style historically, mostly because it was thought to be cheap and allowed employers easily to visually inspect the productivity of their employees. It is said that some of the first "cellular" or "box" office buildings were built in 1726 in London — the Old Admiralty Office and East India House[7] — to allow a better environment for those that needed to think deeply.
The open office plan, however, regained its preeminence by the late 1800s to the early 1900s. It is not entirely clear when individual cellular offices gained dominance again but clearly by 1939, when Frank Lloyd Wright in a recording about his "new" open office concept is heard calling the "box office" a "fascist symbol" of the past.[8] One might surmise that the individual box office took off again around the 1918 flu pandemic, which claimed the lives of 20 to 50 million people (including some 675,000 Americans) between 1918 and 1919.
After the passage of 20 years, and the lack of a further plague, Wright may have felt comfortable to assert that he was more erudite and modern than his predecessors in designing his widely acclaimed "new" open office in Racine, Wisconsin, for SC Johnson Corp. in 1939.
By 1964, the open office concept had grown to such an extent that the constant complaints of employees as to the inability to concentrate led Robert Propst of the Herman Miller Research Corporation to develop the first office cubicles, which were first sold in 1968. The cubicle took off, and for nearly three decades reigned supreme.
While not originally designed to reduce disease spread, clearly the cubicle did so. Unfortunately employers used it to even more tightly pack employees. (Late in his life Propst complained, "They make little, bitty cubicles and stuff people in them. Barren, rathole places."[9] But the first cubicles Herman Miller sold were quite spacious and even had adjustable desks that allowed the employee to stand!).
It was not until shortly after the turn of the millennium that a new, enlightened generation decided it was time to pull down even these modest divider walls, and to further decrease the space between employees.
One might ask why designers had become so complacent in believing a pandemic would not ultimately infect our shores again as it did in 1918. Indeed, the U.S. has barely missed five large serious pandemics over the past 50 or so years — H3N2 (1968: 100,000 U.S. deaths), SARS (2003: no U.S. deaths), HINI (2009: 12,469 U.S. deaths), MERS (2014: 858 U.S. deaths), and Ebola (2014: 2 U.S. deaths).
In contravention to numerous articles over the past two decades demonstrating the increase in sickness in the so-called open office over closed offices, many companies steadfastly removed the dividers between people, shoved more people into less space, all the while extolling communal spaces to justify the significant reductions in individual environmental workspace.
Studies over the past two decades have provided substantial support that the open office, as well as communal spaces, lead to a significant increase in disease spread. In one study published in 2011,[10] a survey of 2,403 employees across multiple offices — closed vs. open, found that occupants in open-plan offices (defined as more than six persons) had 62% more sick absences than persons working in cellular offices.
In another 2013 study of 1,852 employees in shared-room offices, open-plan offices and closed offices (as well as several other combinations of offices) in Sweden,[11] sick-leave rates were also found to be much higher in open vs. closed offices. A 2015 study by Jessica Bergstrom, Michael Miller and Eva Horneij followed 82 employees from three departments within the same company group as they relocated from private offices to open-plan offices.[12] This study found that employee perception of health decreased significantly during the 12-month period following relocation from individual offices to open-plan offices.
In 2016, Britta Herbig, Anna Schneider and Dennis Nowak published a survey study of 207 office employees finding the higher number of persons per enclosed office space the more adverse health effects were reported.[13] A 2017 literature review by Ann Richardson, John Potter, Margaret Paterson, Thomas Harding, Gaye Tyler-Merrick, Ray Kirk, Kate Reid and Jane McChesney identified 15 relevant studies between 2000 and 2017 that addressed the health effects of shared and open-plan offices compared to individual offices, all of which suggested that shared or open-plan offices are deleterious to staff health (as well as well-being and productivity).[14]
It has been known for some time that viruses are the most common cause of infectious disease acquired indoors[15] and that crowded indoor environments consistently facilitate disease morbidity and mortality.[16] As early as the turn of the millennium multiple studies demonstrated that in packed environments, the redesign of HVAC systems was vital to reduce potential disease spread. A 2007 report found 10 studies conclusive in regard to the association between building ventilation and transmission of airborne infection, including SARS.[17]
In 2013, a study by Kelly Reynolds and Charles Gerba at the University of Arizona found viruses on communal items moved quickly to other surfaces.[18] Indeed in a 2017 reference by the same authors, it is reported that a single door knob in a 100-person office could spread to 50% of the office's surface within four hours![19]
The spread from contact with viral contaminated items in common areas can be significant as supported by the Australian Aurora Expedition cruise liner, where it is reported of the 217 passengers on board, 128 passengers and crew tested positive for SARS-CoV-2[20] and the Diamond Princess where nearly 20% of passengers and crew tested positive for SARS-CoV-2,[21] a lower rate than seen in the Australian Aurora likely due to the immediate and stringent quarantining of passengers in their rooms upon discovery of the disease. Others have also suggested the need for cleaning procedures to be scrupulously followed to reduce spread of disease in communal areas.[22]
The transmission dynamics of SARS-CoV-2 is currently being developed, and may have an impact on the materials used in the construction of office space.[23] A study is currently being undertaken at the direction World Health Organization[24] to determine materials which harbor viable SARS-CoV-2 for the longest periods of time.
Initial studies on SARS-CoV-2 apparently correlate well with previous coronavirus studies (e.g., COVID-10)) with copper being seen as antiviral and materials such as glass — now ubiquitously used in the so-called translucent modern office, or euphemistically referred to as display cases, hamster mazes, or fish bowls — plastic, and stainless steel allowing for multiday periods of viability.[25]
It would be ironic if glass, plastic and stainless steel are ultimately confirmed to be problematic for SARS-CoV-2 spread given their widespread use in the so-called modern office.
It is long past time that all companies need to take more into account the health of their employees in the design and control of their office spaces, particularly those that have adopted open floor plans, substantially reduced personal floor space while touting substantial communal space, or ripped down dividers between administrative and/or professional staff.
Some changes to reduce disease spread are relatively inexpensive, such as employing automated doors for ingress and egress into the main work office space, employing of swing doors instead of unidirectional doors in common areas within the office (particularly in wash rooms), placing partitions between all employees especially those that are not at least 10 or more feet from another,[26] stopping the practice of sharing of personal offices (visitor offices need to be reinstituted), employing personnel to clean up common areas multiple times during the work day, and adjusting automated water dispensers in restrooms (and they should be in the restroom, not some chic common wash area) to dispense the U.S. Centers for Disease Control and Prevention's minimally suggested stream to wash one's hands[27] (no, having people place their hands under the fixture several times to obtain such a period of water run does not lead to equivalent hand washing compliance!).
Others may be more costly, but will likely have a significant effect upon disease spread, such as redesigning the HVAC systems to reduce spread of viruses and bacteria from coughing or sneezing employees, installing automatic cleaning toilet seats, and retrofitting offices with materials that are found to reduce the viability of viruses (such as copper facings and handles, possibly copper-containing paints, widely used in the marine industry), or materials that wick away infectious loads.[28]
While temperature checking for entrance may help, we all need at this time to remember poor Mary Mallon (1869-1938), an asymptomatic carrier who by infecting 51 persons is said to have caused a disease outbreak of nearly 3,000 New Yorkers between 1900 to 1907. (Nicknamed "Typhoid Mary" in a 1908 issue of the Journal of the American Medical Association, she spent 26 years of her life in forced isolation under the supervision of New York State Health Authorities on North Brother Island until her lonely death.)
If there is any fear about reopening an office, an audit should be performed to assure reduction in disease spread by a reputable team of scientific, engineering and legal professionals.
Steven Moore is head of the U.S. intellectual property and technology team at Withers LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Bernstein and Turban,"The impact of the 'open' workspace on human collaboration,: Phil Trans. R. Soc. B 373: 20170239.
[2] Schnitzer, The Open office is a breeding ground for Coronavirus and workers are freaked, out" at https://www.theladders.com/career-advice/the-open-office-is-a-breeding-ground-for-coronavirus-and-workers-are-freaked-out, March 11, 2020.
[3] Restatement (Second) of Torts §291 et seq. (1965).
[4] The Restatement (Second) of Agency states an employer owes his employees a duty of care "while the [employee] is properly acting within the scope of his employment …"
[5] Hetrick, "The Employer's Duties Regarding Communicable Disease in the Workplace'" Amer. J. Tr. Advoc. 2000; 24(35) 35-74 at 42, arguing that once the employer knew of the presence of the disease negligence can be shown, with the duty of diligence required depending on the character of the disease and the danger of communicating it to others.
[6] United Sttes v. Carroll Towing Co.
, 159 F.2d. 169 (2d Cir. 1947).[7] K2 space, "The History of Office Design," at https://k2space.co.uk/knowledge/history-of-office-design/, downloaded 4-17-2020.
[8] Musser, "The Origin of Cubicles and the Open-Plan Office," Scientific American Aurugst 17, 2009 (Health).
[9] Blakemore, "Why the Inventor of the Cubicle Came to Despise His Own Creation," August 31, 2008 at https://www.history.com/news/why-the-inventor-of-the-cubicle-came-to-despise-his-own-creation.
[10] Pejtersen et al., "Sickness absence associated with shared and open-plan offices – a national cross sectional questionnaire survey," Scand. J. Work Environ Health 2011; 37(5):376-382.
[11] Danielsson et al., "Office design's impact on sick leave rates," Ergonomics 2013; 57(2):139-247.
[12] Bergstrom et al., "Work environment perceptions following relocation to open-plan office: A twelve-month longitudinal study," Work 2015; 50:221-228.
[13] Herbig et al. "Does office space occupation matter? The role of the number of persons per enclosed office space, psychosocial work characteristics, and environmental satisfaction in the physical and mental health of employees," Indoor Air 2016; 26:755-767.
[14] Richardson et al. "Office design and health: a systematic review," NZMJ 2017; 130(1467):39-49.
[15] See, Barker et al., "Effects of cleaning and disinfection in reducing the spread of Norovirus contamination via environmental surfaces," J. Hosp. Infect. 2004; 58:42-49.
[16] Springthorpe and Sattar, "Chemical disinfection of virus-contaminated surfaces," Crit. Rev. Environ. Control 1990; 20:169-229.
[17] Li et al., "Role of ventilation in airborne transmission of infectious agents in the built environment – a multidisciplinary systematic review," Indoor Air 2007; 17:2-18.
[18] Alexis Blue, University of Arizona Communications, Jan. 30, 2013 at https://uanews.arizona.edu/story/germs-spread-fast-at-work-study-finds.
[19] Sifuentes et al. "Use of ATP Readings to Predict a Successful Hygiene Intervention in the Workplace to Reduce the Spread of Viruses on Fomites," Food Environ. Virol. 2017; 9(1)14-19.
[20] CNN April 8, 2020 "Passengers Evacuated from Australian Cruise Ship As 60% Test Positive."
[21] Mallapaty, "What the cruise-ship outbreaks reveal about COVID-19," Nature 580, 18 (March 2020).
[22] See Staff, The Real Deal, "The coffee break room, actually, is more contaminated than the restroom: Open floor offices add to coronavirus concerns," at https://therealdeal.com/2020/03/10/the-coffee-break-room-actually-is-more-contaminated-than-the-restroom-open-floor-offices-add-to-coronavirus-concerns/ and Kurgat et al,"Impact of a hygiene intervention on virus spread in an office building," Int. J. Hyg. & Env. Health 2019; 222:479-485 – also finding the break room as one of the most contaminated rooms for virus.
[23] Dietz et al. 2019, "2019 Novel Coronavirus (COVID-19) Pandemic: Built Environment Considerations to Reduce Transmission, Preprint at https://msystems.asm.org/content/5/2/e00245-20.
[24] WHO, "Surface smapling of coronavirus disease (COVID-19): A practical "how to" protocol for health care public health professionals," 18 February 2020 Version 1.1.
[25] Warnes et al., "Human Coronavirus 229E Remains Infectious on Common Touch Surface Materials," mBio. 2015; 6(6) 1697-15 at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4659470/ with respect to coronaviruses in general; See, Doremalen et al., "Aerosol and Surface Stability of SARS-CoV-2, NEJM Letter March 17, 2020 in regard to SARS-CoV-2 specifically.
[26] A recent study notes that in hospital wards coronavirus can be found in air samples up to 13 feet from patients — twice the recommended 6 feet guidance in respect to social distancing. NewsYahoo.com, "Coronavirus found in air samples up to 13 feet from patients," April 10, 2020.
[27] CDC, "When and How to Wash your Hands,"https://www.cdc.gov/handwashing/when-how-handwashing.html.
[28] See, Maxwell and Gerba, "Comparative surface-to-hand and fingertip-to-mouth transfer efficiency of gram-positive bacteria, gram-negative bacteria, and pharge," J. App. Microb. 2002; 93(4) – finding hard non-porous surfaces allowed greater bacterial and viral transfer rates.
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