Last week a jury found in favor of IBM by denying damages in a suit filed by two retired workers. The workers alleged that exposure to chemicals and toxins at an IBM plant led to cancer. This case points to several issues that should be of interest to employers and to those of us who work in the field of workers compensation.
First, there is the tort issue. Normally, any compensability for work-related injuries or illnesses would be determined by the state workers compensation system. In that these illnesses arose out of and in the course of employment, why wouldn’t they fall under the prevailing jurisdiction’s exclusive remedy clause of workers compensation?
The answer to this question lies in the fact that almost every state has exceptions to the exclusive remedy doctrine that allow for workers to file tort actions. One common exception is willful intent on the part of the employer. That was essentially the basis of this particular lawsuit: the employees were trying to establish that IBM knew the potential hazard these chemicals represented, that IBM willfully disregarded that danger, and – very important to the California exception – that IBM neglected to inform the employees about that danger. Courts typically impose fairly high standards of proof in cases involving willful intent.
A second issue this case highlights is the difficulty in proving the work-relatedness of an illness. Injuries are generally easier to determine – they often entail observable events, such as a fall, a cut, or a burn. Illnesses may take years to develop. It may also be difficult to separate work-related factors that led to an illness from non-work factors. In the case of chemical exposures, a direct medical link between chemical exposure levels and an illness can be years in determination; even then, chemical agents may be in widespread use, making it difficult to isolate whether the workplace is the proximate cause of the illness.
The judgment in this case may well be a pyrrhic victory for IBM and for the chip industry. A series of 200 related suits from former workers about cancer and chemical poisening are still in the docket, as are about 40 suits involving birth defects in children of workers. The first birth defect suit against IBM will begin in New York next week.
We’ve been talking laws here, but at the heart of the matter is worker safety. The toxins involved in the chip making industry have been coming under scrutiny for several years now, and although there have been some industry efforts at self-policing and enhancing safety, hazards still exist that risk managers, health & safety practitioners, and the industry itself must still address. The fact that IBM has “won” this round does nothing to lift the moral mandate that every employer has to provide a safe and healthful workplace. And if one of the remaining suits finds success in another jurisdiction, the financial imperative may become more pressing as well.
Confined Space reports more on the safety hazards involved in this case, and also reports extensively on a proposed European initiative called REACH (Registration, Evaluation and Authorization of Chemicals) that increases the chemical industry’s responsibility for generating knowledge on chemicals, evaluating risk, maintaining safety standards, and substituting safer chemicals when possible.
More information:
Labor perspective from IBM Alliance
Tech industry reportage at Information Week
Toxic technology: Critics say chemicals used in making chips cause serious illnesses
Dirty secrets of the chipmaking industry
CCOHS: Health effects of trichloroethylene
