In the course and scope of our employment, many of us come in contact with chemicals that may be harmful to us. That harm can be imminent or can cause a delayed harm, such as cancer. Employers not only have a duty to protect their employees, but also have a duty to report all toxic chemicals it manufactures, produces, or otherwise uses. 42 U.S.C.A. §11023 (West). This requirement applies to not only factory settings and construction sites, but also to any temporary workplace. Id.
There has been a compiled list of chemicals that are considered toxic and also a list of symptoms that, if caused, warrant toxic classification and a requirement to report to the appropriate agency. Some of the symptoms include cancer, reproductive dysfunctions, neurological disorders, genetic mutations, and other chronic health defects. Id.
Who can be held liable? That list is covered in 42 U.S.C.A. §9607 (West). It sets forth liability of the following:
- The owner and operator of a vessel or a facility,
- Any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substance were disposed of,
- Any person who by contract, agreement, or otherwise arranged for disposal or treatment, … of hazardous substances owned or possessed by such person, by any other party…,
- Any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance…
These people are held liable for their actions not only as owners and operators of a facility but also as an employer to employees. This provision allows for recovery of the following:
- All costs of removal or remedial action incurred by the United States Government or a State…
- Any other necessary costs of response incurred by any other person…
- Damages for injury to, destruction of, or loss of natural resources, including reasonable costs of assessment…
- The costs of any health assessment or health effects
To recover for exposure to or injury from toxic chemicals at the workplace, the standard is that of negligence. You must prove 4 things: Duty, Breach, Causation, and Damages.
- Duty- this element of negligence is easy to prove in most employment situations because the employer has a duty to protect you from such injury while in the scope of employment.
- Breach- this element is also usually easy to prove. If you have been exposed to or injured by a toxic chemical, it is likely that the duty that your employer has to protect you has been breached.
- Causation- this is the hardest element of negligence to prove in this case because you must link the damages to the chemical. If there is a chemical burn or immediate symptoms that could only result from this type of exposure, it is a no brainer. With things such as late onset cancer, it is more difficult to prove that, but for the exposure, you would not have developed cancer. It is not to be said that it cannot be proven, but it is harder.
- Damages- just the exposure to or risk of injury is not enough to recover. You must have suffered some sort of compensable damages.
You must also be aware of the statute of limitations, which varies from state to state. In Texas, the applicable statute is two years. This starts to run at the time you become aware of the effects of the exposure or injury. If you find out ten years after exposure that it led to cancer, you have two years from the date of diagnosis or the date that you knew or should have known that you suffered an injury . If you are immediately injured from a chemical, such as a burn, you have two years from the date of injury.
Written by:*
Lyndsey Mott
Approved by Francisco Guerra IV
Watts Guerra LLP
4 Dominion Drive, Bldg 3, Suite 100
San Antonio, Texas 78257
Phone (210) 447-0500
*This information is provided to supply relevant information concerning the subject matter of this article, and should not be received as legal advice. Legal advice is only given to persons or entities with whom Watts Guerra LLP has established an attorney-client relationship. Available causes of action and remedies vary from case to case and depend on the underlying facts of each. If you have another lawyer, you should consult with your own attorney, and rely upon his or her advice, rather than the information contained herein.
© Watts Guerra LLP 2015
