The construction industry faces a wide variety of safety considerations, and asbestos risks have beset the industry with decades of health-related liability issues, resulting in ripple effects for insurers.

Back in 1972, Congress passed the Occupational Safety and Health Act into law, creating the Federal Occupational Safe and Health Administration (OSHA), which remains at the forefront of employee safety and has had a significant impact on modern U.S. asbestos litigation. Beyond the immediate consequences of a regulatory violation, OSHA standards impact today’s asbestos litigation in three important ways:

• OSHA violations are often cited by plaintiff’s counsel arguing for the imposition of a higher degree of culpability;
• OSHA’s applicability can allow certain knowledge to be legally imputed to a defendant (irrespective of what the defendant actually knew);
• Because OSHA’s regulations control the actions of employers and their employees’ workplace, the adherence or non-adherence to OSHA standards may give rise to arguments for apportioning greater liability to defendants in physical control of the plaintiff’s workspace.

Historical background: Asbestos exposure regulation

OSHA’s regulatory regime has had significant impact on modern U.S. asbestos litigation, but asbestos regulation goes back even further.

The United States’ first work-related asbestos exposure standards appeared in the late 1930s, shortly after the institution of similar controls in the United Kingdom. These arose on a state-by-state basis and were not applicable nationwide. In most instances, individual states adopted an exposure level of 5,000,000 particles per cubic foot (ppcf) of total dust (not only asbestos fibers) of air based on a time-weighted average over an eight-hour work day. This level derived from a 1938 United States Public Health Service survey of several asbestos textile mills in North and South Carolina, which found that almost none of the mill workers employed for a period of 10 years or more and exposed (on average) to less than 5,000,000ppcf had asbestosis. For workers exposed above this level, substantial numbers of asbestosis were found.