Guide to Asbestos Exposure in the Construction Industry

Learn about the dangers and legal remedies for construction workers exposed to asbestos

When you think of all the dangers associated with the construction industry, images of workers falling from scaffolds and getting stuck in powerful machines probably come to mind. But exposure to toxic substances is also a significant risk and no toxic exposure has been more publicized in the construction industry than the exposure to an invisible killer: asbestos.

In this article, we’ll look at what asbestos is, what problems it causes for construction workers, how it can be avoided, and what legal options exist for workers who have been exposed.

What is asbestos?

Asbestos is a mineral fiber that occurs naturally in rock and soil. Because of its strength, flexibility, and heat resistance, asbestos has been used for decades in construction materials for insulation and as a fire retardant.

You might still find asbestos in:

• Attic and wall insulation
• Vinyl floor tiles
• Roofing and siding shingles
• Patching compounds used on walls and ceilings
• Walls and floors around wood-burning stoves protected with asbestos paper, millboard, or cement sheets
• Materials covering pipes used to transmit heated air or fluids

Health effects from exposure to asbestos

Unfortunately, asbestos can be extremely harmful to humans. Research has shown that exposure to asbestos increases your risk of developing:

• Lung cancer
• Mesothelioma (a form of cancer found in the lining of the lungs, chest, abdomen, and heart)
• Asbestosis (a serious, long-term disease of the lungs)

How construction workers are exposed to asbestos

In most cases, exposure to asbestos only occurs when the asbestos-containing material (such as a sheet of insulation or vinyl floor tile) is disturbed or damaged in such a way that microscopic particles are released into the air and inhaled.

Notably, the presence of asbestos has dramatically declined since its peak in the 1970s. Today, there are only a few products that contain asbestos. This is due in large part to three actions taken by the Environmental Protection Agency (EPA) in recent decades:

• 1989 partial ban: An EPA rule under the Toxic Substances Control Act (TSCA) banned the manufacture, import, processing, and distribution of certain asbestos-containing products.
• 2019 asbestos regulation: This EPA rule prohibits discontinued asbestos products from being reintroduced into commerce without the EPA first evaluating the products and putting in place any necessary restrictions, including prohibiting the use of the product entirely.
• 2019 risk evaluation of asbestos: The EPA is presently evaluating certain current asbestos uses (including asbestos diaphragms and sheet gaskets) to determine whether the uses present an unreasonable risk of injury. If the EPA finds that an unreasonable risk of injury exists, they will address those risks which could include restricting or banning the use.

Though EPA rules have certainly reduced the risk of asbestos exposure, asbestos still hasn’t been completely banned in the United States. What’s more, construction workers may still come in contact with old asbestos-containing products in homes and commercial buildings.

Construction workers who are most at risk of being exposed to asbestos include:

History of asbestos lawsuits

As early as 1930, companies became aware of the dangers of asbestos exposure. However, the laws at the time made it impossible for companies to be sued by employees when the symptoms of asbestos exposure appeared years (or decades) down the road.

This changed in the 1960s when courts began interpreting the statute of limitations to allow employees to sue their employers at the time they discovered the harm caused by asbestos (even though this was often long after they were exposed).

As a consequence, the number of asbestos lawsuits skyrocketed and by the late 1970s, many companies eliminated asbestos from their products.

To date, some of the most famous toxic tort cases concern asbestos, including the infamous Libby, Montana, asbestos outbreak.

How to prevent exposure to asbestos

Although awareness of the dangers associated with asbestos has increased over the years, many employers are still not taking proper steps to prevent construction workers from encountering asbestos in the workplace.

In fact, a 2015 study reported airborne asbestos levels actually exceeded OSHA standards at many job sites from 1984 to 2011.

As a result, construction workers can’t simply rely on their employers to keep them safe. If you work in an area that may contain asbestos, you should take the following steps to prevent exposure:

• Ask your employer about any asbestos health risks in your workplace.
• Never cut, saw, drill, sand, scrape or otherwise disturb asbestos-containing materials.
• Always wear proper protective gear when your work may disturb asbestos.
• Don’t bring home shoes or work clothes that may have been contaminated with asbestos.
• Don’t sweep, dust or vacuum asbestos debris.
• Always dispose of asbestos materials according to state and federal regulations.
• Never perform asbestos work for your employer if you’re not trained and certified. If you lack the proper training in asbestos removal, leave this type of work to professionals.

What to do if you’ve been exposed to asbestos

If you think you may have been exposed to asbestos, seek medical attention immediately. Not only can medical intervention help reduce undesirable health consequences, but seeing a doctor will help establish evidence of your exposure that may be important if you decide to seek compensation for your injuries at a later date.

Legal theories that support an asbestos claim

If you’re exposed to asbestos and develop health problems as a result of your exposure, there are a number of potential legal theories you can use to establish liability and receive compensation. Some of the most common legal theories include negligence, strict liability, and workers’ compensation claims.

Let’s take a closer look at each of these theories below as well as the main defense to these claims.

Negligence

To establish a negligence claim, you must prove 3 things:

1. You were owed a legal duty by the company (i.e., the company was obligated to provide you with a reasonably safe work environment),
2. The legal duty was breached by the company (i.e., the company failed to provide you with a safe work environment), and
3. The breach caused harm to your body (i.e., the breach was the direct and proximate cause of your injury).

For example, let’s say you’re a construction worker and your company forces you to work with asbestos but fails to provide you with the proper protective gear.

In this situation, the construction company, which owed you a duty to provide a reasonably safe work environment, likely breached that duty by failing to provide you with the necessary safety gear. So long as you can provide proof that the exposure to asbestos caused an injury, you will have successfully proved a negligence claim.

Strict liability

Unlike negligence, strict liability exists regardless of fault. The theory behind strict liability is that some activities are so dangerous that the person or company who caused the resulting injury should be held liable.

The most common example of strict liability is product liability. When a company makes a product available to others that is unreasonably dangerous (even when used properly), the company will likely be held strictly liable for any injuries that result from the dangerous product.

For example, let’s say a company creates insulation that contains asbestos but fails to seal the asbestos-containing material to keep it from separating and being released into the air. Such a product would likely be deemed unreasonably dangerous and the manufacturer would be held strictly liable for any injuries resulting from exposure to their product.

Workers’ compensation claim

If you were harmed by asbestos while on the job, you can file a workers’ compensation claim.

Workers’ compensation is a form of insurance that pays medical expenses and lost wages to employees who are injured while doing their job. Most employers are required to carry workers’ compensation insurance and most injuries are covered so long as the injury occurred during the course of employment.

One of the benefits of filing a workers’ compensation claim (as opposed to filing a civil lawsuit) is that workers’ compensation is a no-fault insurance system. This means that you don’t need to prove that your employer did anything wrong in order to receive compensation for your injury.

Defenses to asbestos claims

The central issue in most asbestos cases is causation. As a reminder, a worker must show that their exposure to asbestos caused their physical harm.

Establishing this causal link can be extremely difficult for a couple reasons.

First, many exposures don’t produce any harm until years (and sometimes decades) after the initial exposure. This time gap allows the defendant to argue that some intervening factor such as exposure to asbestos in some other situation, genetics, or exposure to a different substance may have actually caused the harm.

Second, science is always evolving and it’s not always clear whether asbestos causes a particular injury.

As you can see, injury cases involving asbestos exposure can be especially complex.

If you have been injured as a result of being exposed to asbestos, we recommend talking to a personal injury lawyer to explore your legal options.