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 removing asbestos or otherwise making it safe.

But what happens when employers don’t take these steps? In most states, employees can collect workers’ compensation benefits 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 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

When a worker (employee or contractor) is injured by asbestos exposure, the first question to ask—for purposes of invoking workers’ comp coverage—is “Who is the worker's employer?” The answer won't always be clear.

Places where asbestos is commonly found, like auto plants, shipyards, and mines, are typically staffed not only by employees, but also by contractors. Contractors range from one-person operations to huge companies employing hundreds or thousands of their own employees.

Follow the Money

Here's a simple rule of thumb for determining who the employer is: Look at the worker’s pay stub. As a rule, the business signing the paycheck is the employer. Countless asbestos cases involve people 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 the worksite.

For example, say you were a plumber employed by Mega Plumbing Company. You worked at Ace Auto Factory for 20 years while Mega had a contract with Ace to provide plumbing services at the factory. Mega signed your paychecks, not Ace. Mega also set your hours and told you what work to do.

Any employer liability for your asbestos illness (or any other injury) rests with Mega. You can get workers’ comp benefits from Mega, but you can’t sue Mega for your injuries. You can, however, sue Ace in court, because Ace wasn't your employer.

Multiple Exposure Sites

Another common scenario involves a worker who worked at several job sites owned by different companies, all while employed by another company. Suppose, for example, that a plumber employed by Mega Plumbing for 30 years worked for five years at Ace Auto Factory, 10 years at Caustic Chemical Company, and 15 years for Superior Steel Company.

Here again, Mega Plumbing is the employer. Employer liability for asbestos exposure belongs to Mega.

Asbestos Lawsuits

Workers' comp exclusive remedy rules apply only to employers. They don't bar lawsuits against third parties like companies that manufacture or sell asbestos-containing products, or to companies that sell safety equipment like respirators.

Say you were exposed to asbestos and became ill while working for a contractor at a third-party manufacturing site where asbestos-containing products were made. Because it knew you were likely to be exposed to asbestos, your employer furnished you with respirators and other protective equipment. Unfortunately, it turned out that the respirators were defective. You've since been diagnosed with mesothelioma.

You might have a negligence claim against the manufacturer, for failing to take necessary safety precautions. In addition, your lawyer will look into a strict product liability claim against the maker of the defective respirators.

Asbestos Claims Based on Negligence

To win an asbestos exposure personal injury lawsuit, a worker (the “plaintiff”) typically must prove that the party they're suing (the “defendant”):

• had a duty to protect the worker from asbestos exposure, and
• violated (breached) that duty by acting or failing to act.

These two elements—duty and breach—are what the law calls negligence. When negligence causes harm, there's a viable legal claim.

Duty

Federal Occupational Safety and Health Administration (OSHA) regulations impose duties on companies to monitor for asbestos in places where it might be present. In many circumstances, they must take steps to protect workers from exposure.

More generally, the law requires that a defendant must act reasonably under the circumstances. When a company knows or should know that workers are, or are likely to be, at risk of asbestos exposure, it has a duty to act reasonably to protect them from foreseeable harms.

Breach of Duty

A breach of duty is any failure to protect workers from exposure to asbestos. Some examples of possible breaches might include failing to:

• monitor asbestos concentrations in the air when the presence of asbestos should have been expected
• use ventilation systems to reduce asbestos concentrations in enclosed spaces
• provide workers with personal monitoring devices, and
• place time limits on worker exposure to contaminated air.

Causation

Asbestos cases often hinge on the issue of causation, meaning whether asbestos exposure actually caused the worker’s injuries. Plaintiffs can only win if they prove causation.

Imagine a worker who was diagnosed with lung cancer after working in enclosed spaces with asbestos-containing insulation for 20 years. The worker's expert witness (hired by the worker’s attorney) testifies that it’s highly likely the worker was exposed to dangerously high levels of asbestos during their career, and that asbestos caused the lung cancer.

The defendant counters that the worker smoked a pack of cigarettes a day for several decades. Tobacco use, says the defendant, caused the cancer.

If a jury concludes that asbestos caused the worker’s cancer, the defendant could be liable for millions in damages. On the other hand, if the jury decides that smoking cigarettes was the cause, the worker will get nothing.

Damages

In negligence cases, the most common types of damages include:

• medical expenses (past and future)
• lost wages and lost future income
• pain and suffering, and
• loss of enjoyment of life (decreased quality of life as a result of the injury).

Asbestos Claims Based on Strict Product Liability

Your lawyer will probably bring a strict product liability lawsuit against the maker of the defective respirators you used. In a strict liability case, you don't have to prove that the product maker acted negligently or was otherwise blameworthy. You need only prove that you used the product as it was intended to be used, the product was defective and dangerous, and the defective condition caused you to be injured.

Employer Liability for Secondary Asbestos Exposure

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

States are split on whether people injured by “take home” asbestos can sue employers for the exposure. Some, 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.

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 aren't that simple. They typically require medical and legal expertise.

An asbestos-injury attorney can:

• help you investigate your work history
• identify potential sources of asbestos exposure
• gather and review your medical and employment records
• find and hire necessary expert witnesses
• anticipate and rebut likely defenses, and
• help you put together a compelling narrative that presents your case in the most favorable light.

When you're ready to get started, here are some tips to help you find and hire an asbestos-injury lawyer who's right for you.