Employer Liability for Exposure to Asbestos

The employee-employer relationship is important in an asbestos related injury case, because it determines the injured person's options for compensation.

Employer responsibility for asbestos exposure is a controversial topic. Asbestos exposure almost always occurs at a place of work, yet in many jurisdictions it has become increasingly difficult to sue an employer for the resulting injuries.

While the laws dealing with employer responsibility for asbestos exposure vary from state to state, there is usually some way for an injured employee to recover for asbestos-related injuries sustained at a workplace. Read on to learn more.

Workers’ Compensation and Asbestos

In many states, including asbestos exposure hotbeds such as Michigan and California, workers’ compensation laws are a major factor in determining employer responsibility for asbestos exposure.

Workers’ compensation laws are considered to be an “exclusive remedy,” meaning that if an employee is injured on the job, the employee has a right to recover through the state’s workers’ compensation structure, but cannot sue an employer in court. Such exclusive remedy statutes apply equally to a broken toe or a terminal case of mesothelioma due to asbestos exposure.

A workers’ compensation claim against an employer is normally conducted outside of a formal court setting. Most states have an administrative bureau or tribunal in place to make decisions regarding the disbursement of workers’ compensation funds to an injured employee. These funds are raised through mandatory contributions to state programs or are paid through private insurance. Most exclusive remedy states require employers of a certain size to carry special insurance dedicated to the settlement of workers’ compensation claims.

A workers’ compensation claim for asbestos exposure is limited to claims against a direct employer. Manufacturers, suppliers and contractors that may have facilitated asbestos exposure are not responsible under workers’ compensation law. Instead, they may be sued in court. Employers, generally, cannot.

Unlike a lawsuit, a claim for workers’ compensation benefits is generally handled through specific forms and interviews as required by a particular state. If a claim is denied, and administrative appeals to the Workers’ Compensation Bureau are unsuccessful, it may be possible to go to court to overturn the Bureau’s decision, but laws vary from state to state.

Defining an "Employer" in an Asbestos Case

Defining the potentially liable employer in an asbestos exposure case is not always a simple task. Since asbestos exposure generally occurs in an industrial setting, identifying a claimant’s actual employer involves more than just identifying the physical location where a claimant worked. Because auto plants, shipyards, mines and any number of companies often employ contractors to perform various functions throughout their business, the employer and the location of employment do not always go hand-in-hand.

A simple rule of thumb for determining an employer is to look at a paystub. As a general proposition, the entity signing the paycheck is the employer. There are countless asbestos cases involving individuals that worked at a particular plant for 20 or 30 years, but were actually employed by a contractor independent of the company that owned their work site.

An example of this type of situation would be a plumber that worked at Family Auto Plant for 20 years while employed by Plant Plumbing Company, who has a contract with Family Auto Plant to provide all plumbing services. Plant Plumbing paid the employee, not Family Auto. And Plant Plumbing controlled and directed the employee’s work. So any employer liability for asbestos exposure (or any other injury) would rest with Plant Plumbing. This means that while the employee could potentially recover workers’ compensation benefits from Plant Plumbing, the employee could not sue them for their injuries. Conversely, the employee is free to sue Family Auto Plant in general court.

Another common scenario involves a contractor working at multiple job sites for multiple companies, all the while employed by the same contractor. An employee of Plant Plumbing could have worked for five years at Family Auto Plant, ten years at Caustic Chemical Company and 15 years for Superior Steel Company, but was employed by Plant Plumbing for the entire 30 years. Once again, Plant Plumbing is the employer, despite the exposure occurring at various different job sites. Any employer liability for asbestos exposure would reside with Plant Plumbing.

Employer Liability for Secondary Asbestos Exposure

Secondary exposure to asbestos arises from exposure through another person who has been working with or around asbestos, as opposed to direct exposure to the asbestos itself. The law regarding employer liability for secondary exposure is evolving. Recent decisions in both California and Illinois have reduced or eliminated employer liability in secondary exposure cases, creating the potential for appeals to the Federal court system to ultimately decide the issue. Until then, the law of each jurisdiction governs, and employer liability varies depending on where a suit is filed.

Employer responsibility for asbestos exposure will continue to be a controversial and evolving issue. Workers compensation or personal injury attorneys are the best resource for determining potential responsible parties, be they employers or otherwise.

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