Employer Liability for Asbestos Exposure

Asbestos exposure can cause severe illnesses, including deadly cancers like mesothelioma. Employers have a duty to protect their employees from exposure by encapsulating asbestos or removing it. But what happens when employers don't take these steps?

In most states, employees can ask for workers' compensation when they get sick from asbestos exposure at work. Learn more about the different types of claims employees and their families might have for work-related asbestos exposure, including one or more of the following:

• workers' compensation claims
• lawsuits against asbestos manufacturers and others that contribute to asbestos exposure in the workplace, and
• lawsuits against employers for secondary (or "take home") asbestos exposure.

Workers' Compensation and Asbestos Exposure

In many states, including asbestos-exposure hotbeds like Michigan and California, workers' compensation laws determine an employer's liability for job-related asbestos exposures.

Workers' compensation ("workers' comp") is a no-fault system that allows injured employees to get compensation (typically medical expenses and partial wages) without having to prove that an employer is legally at fault for their injury. In exchange, employees give up their right to sue their employers—and potentially recover more money—in court.

In most cases, workers' comp is the exclusive remedy for injured employees, meaning they can't sue their employers in court (although there are a few exceptions). Exclusive remedy laws apply equally to a broken toe or a terminal case of mesothelioma due to asbestos exposure.

Identifying the "Employer" in an Asbestos Case

Places where asbestos is commonly found, like auto plants, shipyards, and mines, are typically staffed not only by employees, but also host contractors to perform various functions at different levels of their business. When a worker (employee or contractor) is injured by exposure, the first question to ask, for purposes of invoking workers' comp coverage, is "Who is the employer?"

Here is one simple rule of thumb for determining who the employer is: look at the worker's paystub. As a general rule, the entity signing the paycheck is the employer. Countless asbestos cases involve individuals who worked at a particular factory or plant for 20 or 30 years, but were actually employed by a contractor independent of the company that owned their worksite.

For example, say you were a plumber employed by Plant Plumbing Company, but you physically worked at Ace Auto Factory for 20 years while Plant had a contract with Ace to provide plumbing services at the factory. Plant signed your paychecks, not Ace. And Plant set your hours and told you what tasks to do. Any employer liability for your asbestos exposure (or any other injury) would rest with Plant. So, you could potentially receive workers' compensation benefits from Plant, but you couldn't sue Plant for your injuries. But you may sue Ace in court (see below).

Another common asbestos-injury scenario involves a contractor who worked at multiple job sites owned by multiple companies, all while employed by another company. For example, a plumber employed by Plant Plumbing for 30 years could have worked for five years at Ace Auto Factory, 10 years at Caustic Chemical Company, and 15 years for Superior Steel Company. Once again, Plant Plumbing is the employer, despite the exposure occurring at various job sites. Any employer liability for asbestos exposure would reside with Plant Plumbing.

Asbestos Lawsuits

Workers' compensation claims don't extend to manufacturers of asbestos, suppliers of protective equipment that fails, owners of job sites (when the owner is not the same as the workers' employer), and contractors and subcontractors involved in an employee's work. So, a person can get compensation from an employer through workers' comp and sue asbestos manufacturers and others that might have facilitated asbestos exposure on job sites.

Asbestos Trust Funds

Many asbestos manufacturers and companies that installed asbestos have gone bankrupt. Courts have required these companies to establish personal injury trusts to compensate asbestos victims. An asbestos bankruptcy trust is created during the bankruptcy process and, once formed, becomes the only source of compensation from that company for asbestos-related injuries. So, in some cases, a person might file an asbestos trust fund claim instead of an asbestos lawsuit, or in addition to asbestos lawsuits filed against non-bankrupt companies responsible for the exposure.

Employer Liability for Secondary Asbestos Exposure

Primary asbestos exposure happens when people work directly with asbestos. Secondary asbestos exposure (also called "take-home" asbestos exposure) happens when workers bring asbestos home on their work clothes, shoes, and tools and expose their families.

Employer liability for secondary asbestos exposure varies from state to state. States are split on whether people injured by "take home" asbestos can sue employers for the exposure. States like New York and Michigan have said that employers aren't liable (responsible) for secondary asbestos exposure. Other states, like California, allow anyone diagnosed with an asbestos-related illness to sue the employer of a household member for secondary asbestos exposure (whether the injured person will recover is up to the judge or jury).

Talk to an Asbestos Lawyer

In some situations, like a slip-and-fall at work, you might be able to handle your own workers' compensation claim or lawsuit. Asbestos cases are different. Asbestos claims typically require medical and legal expertise.

An asbestos attorney can help you investigate your work history and identify potential asbestos exposures. An attorney will also review your medical records and help you prove that your illness was in fact caused by asbestos exposure.

If you've been diagnosed with an asbestos-related illness, chances are people you worked with at the time of your exposure have gotten sick too. If any of them have hired a lawyer and filed a lawsuit, consider asking them for a referral. You can also fill out the form at the top or bottom of this page and get connected with an asbestos attorney for free.