Portable Sanitation Association International

ASSOCIATIONINSIGHT Portable Sanitation Association International News BIWEEKLY EDITION SEPTEMBER 2, 2020 Page 13 Portable Restroom Plays Role in Workers' Comp Decision…continued from page 12 The judge on the case wrote: "Based on the evidence introduced at the expedited hearing, the trial court concluded Employee's work activities did not present a risk greater than the risk common to the general public at the same time and place. We conclude the evidence does not preponderate against this finding." The Board additionally observed that Rosasco didn't testify that his employer restricted him from leaving the job site to use a different restroom, subjecting him to an increased risk. Judge Hensley concluded, "The evidence indicated that the event occurred on a public street and was not the result of a hazard incident to Employee's work as a painter." The Board remanded the case to the trial court. The Board's opinion isn't appealable at this stage, but Rosasco may introduce additional evidence at a later expedited hearing or the final compensation hearing. Implications for Portable Sanitation Portable sanitation companies are often in a situation where someone who did not rent their units uses them. That is the reason units are placed at event sites. On job sites, though, to the extent possible it is best to choose placement options that minimize this happening. Doing that ensures the customer who paid for the unit is getting full use of it, and it reduces both the customer's liability and yours. We don't know, of course, what will happen next in the case above, but these situations often lead to someone getting sued. By minimizing the unauthorized parties using worksite units, you minimize exposure. In a similar vein, this incident is a great case study for talking with your service technicians and P&D team. While the court ruled that a large tree limb falling on the user of a portable restroom was an "Act of God," the person was still injured. No one wants that to happen. Talk with your team about placement options and considerations. You can't anticipate everything that could happen, but it's worth going over the pros and cons of certain placement choices. At a minimum, being able to show that you have a training program for this can help if you are sued. Being able to demonstrate the considerations in your placement decisions will show that you were not simply being careless or expedient by positioning the unit. This can help reduce a finding of negligence on the part of your company and its workers and keep it classified as an "Act of God." In this case, the employer didn't provide a restroom for the employee. Believe it or not, this is legal, provided they allow the employee to drive off the job site to a restroom nearby (see 29 CFR 1910.141(c)(1)(ii)). Homeowners may not be amenable to having workers enter the home, especially during COVID-19. So the worker with a full bladder either needs to leave the job site which costs the employer time and money, or the worker will "make do." This can mean relieving themselves in an undignified and unsanitary manner or using a nearby portable restroom, if one is in sight. Portable sanitation companies may have a business opportunity in this situation. Plenty of employers are engaged in businesses similar to house painting. How can our industry offer a better alternative for these short-gig job sites? How can we provide guidance to our customers nearby so their units are not being used by others? These and other questions are great points for discussion. We should consider messages and strategies to offer to all the parties in a situation like this. They arise often. Our industry can, and should, rise to the occasion. v

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