Mold is one of the oldest life forms on the planet, and it continues to be a hot topic among health experts – as well as those operating and maintaining education facilities.
Most types of mold grow in high-moisture areas. Mold plays an important part in our ecosystem and can have various beneficial uses, but prolonged exposure to elevated levels of certain mold types can cause allergic reactions and respiratory problems, which may be severe.
Complaints about mold at education institutions may arise from students, employees or visitors. Unlike many contaminants, however, there may be few clear regulatory or health-based limits to define acceptable versus unacceptable levels for mold. Given that, plus the different types of mold and different levels of personal sensitivity, determining the risk from mold exposure can be complicated.
Often, the initial response made following a mold complaint is immediate testing; however, the process, scope, and type of testing may raise more issues that must be addressed.
To Test or Not Test
Before a decision is made to test, several issues should be considered in consultation with technical and legal resources that are experienced in dealing with mold issues. Those issues include:
- Determining which test method(s) to use, and how best to carry out tests in a specific setting
- Ensuring that the selected test method(s) are carried out properly
- Interpreting test results
- Determining “action levels” (i.e., results that warrant follow-up action), and what such action should be
- Confirming that the institution is prepared to promptly commit the resources necessary for such action
Testing for mold may be more complex than expected. Unlike most contaminants, mold is ubiquitous in nature as well as in built environments. The many different types of mold further complicate the picture. Some molds always produce toxins, other molds produce toxins only in certain environments and some molds do not produce toxins in any environment. Contributing to the problem, the U.S. Centers for Disease Control and Prevention does not recommend routine sampling for mold because there are no established standards for determining what constitutes a “normal” level.
If a decision is made to proceed with testing for mold, the uncertainties potentially associated with such testing make it necessary to consider how to appropriately manage information and discussions resulting from such testing. Depending on the context, it also may be appropriate to consider whether and to what degree confidentiality or attorney-client privilege protections are warranted.
Prevent, Detect and Abate
The time and costs required for testing and the potential value of test results should be weighed against the value of prevention, detection and abatement strategies. These strategies include:
- Periodically checking for possible moisture sources that could create mold issues in interior spaces
- Conducting visual or odor checks for mold, and using enhanced cleaning regimens in potential problem areas
For moisture sources, mold experts assess not only for potential sources of liquid water (e.g., plumbing leaks), but also for water vapor (e.g., hot, humid exterior air entering air-conditioned interiors, leading to condensation). Vapor is a particular challenge on college campuses at the beginning and end of the academic year when students or visitors prop doors open to facilitate move-in or move-out.
When an institution identifies a mold problem or becomes aware of a mold complaint, it is important to promptly locate and abate moisture source(s) at the specific location as well as any surrounding areas that may also be affected. The immediate response should take into account how it will affect students or employees who report having allergies or other respiratory problems. Such persons should be relocated immediately until mold removal professionals can clean the affected areas.
One prevention method schools should consider is educating students on the instrumental role they play in causing or preventing the growth of mold. Encouraging best practices for student spaces and common areas can help institutions lower the risk of significant mold growth. These best practices include preventing mold growth by:
- Hanging wet towels or sweaty clothes to dry
- Using exhaust fans when showering
- Mopping up spills immediately, whether on floors, on countertops, inside cabinets, or elsewhere
- Ensuring any rugs or carpets that receive spills or tracked-in rain, snow, or ice do not stay wet
- Immediately reporting any wet rugs or carpets that cannot be easily dried
- Immediately reporting any odors
Another important prevention method is diligent building maintenance. One of the many dangers of deferred maintenance, particularly in older buildings, is the growth of mold. Delays in tasks like repairing window or roof leaks or insulating piping can lead to mold infestations. Although deferring seemingly minor repairs might save costs in the short term, it can necessitate future mold remediation that may be urgent and far costlier and could expose the institution to bad publicity or legal liability.
For example, a 2019 class action lawsuit against Indiana University Bloomington cited widespread mold infestation in university residence halls because of chronically leaking pipes, condensate leaks from heating and cooling systems, roof leaks, and many other unaddressed maintenance deficiencies. The university’s response included installing air filtration systems, but those led to noise complaints and an expansion of the lawsuit. The university was ultimately successful on appeal, but not before compensating 2,458 students a total of $7.7 million and enduring high-profile negative publicity.
Before significant mold problems occur, institutions can employ prevention methods such as:
- Performing regular building and HVAC inspections that include scrutiny of potential mold sources or hot spots
- Routing vents outdoors for all moisture-generating appliances
- Avoiding putting carpeting in high-humidity spaces such as basements
- Assessing and if necessary, controlling humidity levels in all interior spaces
Although mold is ubiquitous, serious mold infestations and resulting class-action lawsuits do not have to be. With planning and preventive action, education institutions can limit mold-related exposure and loss.
Mallori Thompson, J.D., ([email protected]) is an Associate with the Robinson+Cole law firm in Hartford, Conn. Kathleen Dion, J.D., ([email protected]) is a Partner with Robinson+Cole. Brian C. Freeman, J.D., ([email protected]) is a Senior Associate with Robinson+Cole.
About the Author
Mallori Thompson
Mallori Thompson, J.D., is an Associate with the Robinson+Cole law firm in Hartford, Conn. She focuses her practice on all aspects of general business litigation and dispute resolution, including tort and contract matters.
Mallori received a J.D. from the University of Connecticut and a B.A. in Comparative Women’s Studies, with a focus on Public Policy, from Spelman College. Mallori is also a First Lieutenant, Medical Service Officer in the U.S. Army Reserves based at Westover Air Reserve Base in Chicopee, Massachusetts.
She can be reached at [email protected] or (860) 275-8253.
Brian Freeman
Brian C. Freeman, J.D., ([email protected]) is a Senior Associate with Robinson+Cole law firm in Hartford, Conn.
Kate Dion
Kate Dion, J.D., is a Partner with the Robinson+Cole law firm in Hartford, Conn. She focuses her practice on providing counseling and dispute resolution advice to colleges, universities, independent schools, child care centers, and organizations serving children and youths.
Kate chairs the firm’s interdisciplinary Education Industry Team and is a member of the firm’s Business Litigation Group and Internal Investigations and Corporate Compliance Team. She obtained a J.D. from Western New England University School of Law and a B.A. in History from the University of Massachusetts.
She can be reached at [email protected] or (860) 275-8231.