Early Diagnosis of Industrially Induced Cancers and Birth Defects: Employees' Rights and Employers' Duties to Warn Before Hiring, During Employment and After Employment Ends
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Early Diagnosis of Industrially Induced Cancers and Birth Defects: Employees' Rights and Employers' Duties to Warn Before Hiring, During Employment and After Employment Ends

It is well known that employers are legally required to warn employees of on-the-job hazards. Not so well known are the employer's duties to warn of discoveries made in pre-employment health examinations and health hazard information learned by the employer after employment has been terminated.

Under California law, an employer cannot be sued by an employee who suffers an on-the-job injury. The only avenue an injured employee has for redress is through the workers' compensation system, which provides medical care, temporary disability payments, limited compensation for long-term disability and rehabilitation and retraining, but no compensation for pain and suffering. Decisions are made by an administrative law judge without the right to trial by jury. Awarded benefits are not diminished in cases where the employee causes his or her own injury because this body of law does not consider liability for fault, but rather focuses on delivering limited benefits to anyone injured while at work.

There are several exceptions to the workers' compensation laws which allow an injured employee to take an employer to court before a judge and jury.

A lawsuit is authorized when an employer conceals health hazards that are known to cause or aggravate injuries, such as sending employees back to work with hazardous materials that have already caused injury and also for intentionally injuring an employee. In addition, when an employer does not carry worker's compensation insurance and is not lawfully self-insured, the employer can be sued in California Superior Court.

There are only two additional situations where an employer can be held responsible before a Superior Court jury and those are cases where a worker is injured as a result of an employer's failure to warn. Technically these special duties of an employer arise outside ofd actual employment and focus on pre-employment and post employment situations.

First, an employer also has a duty to warn of the results of a pre-employment physical examination that reveals a condition or illness.

Second, former employees must be warned when new knowledge become available concerning hazards the former worker was exposed to while employed.

Pre-Employment Duty to Warn

The employer's pre-employment duty to warn is described in Coffee v. McDonnell-Douglas (1972) 8 Cal. 3d 551, 105 Cal. Rptr. 358. In Coffee , McDonnell-Douglas did not report to the employee a dangerous condition revealed in a pre-employment examination, which was performed solely to determine fitness for work. Id. at 559. Coffee holds that an employer is liable to an employee for failing to disclose the results of a pre-employment blood test to the employee, when it causes injury to the employee. Under Coffee, an employee can file a direct action against an employer in Superior Court for damages caused by a failure to warn and the injured person is not relegated to making a claim for limited benefits under the workers' compensation laws.

Post-Employment Duty to Warn

In Molsbergen v. United States [9th Cir. 1985] 757 F. 2d 1016, a Navy pilot who dropped an atomic bomb on Nagasaki sued the government for not warning him of the hazards of nuclear radiation once it first learned of the risk to which the pilot had been exposed, which was years after the 1945 bombing.

This federal tort claim against the U.S. government is the only reported case analyzing California law to raise the post-employment failure to warn of new information concerning exposures to hazards at work.

Because no Californian state court had addressed the issue, the Ninth Circuit United State Court of Appeal was free to decide how the California Supreme Court would decide what duties an employer had to former employees. The Ninth Circuit is the only appellate court to have decided "whether, and under what circumstances, the California Supreme Court would impose a duty to warn on a private employer who learned of a danger to which a former employee had been exposed in the course of his employment."

The Court, after analyzing California cases on the general topic of duty to warn, held that "when an employer gains information about a serious danger to which a readily identifiable former employee has been exposed in the course of his employment, the relative cost or inconvenience of warning him is not substantial and there is a reason to believe that the warning might be of some benefit to its recipient, the California Supreme Court would find that a duty to warn exists." Id. at 1024.

In arriving at this decision, the Ninth Circuit reviewed specific cases which discussed the public policies on the value of warnings and imposed a duty to warn, including the duty of a psychologist to warn a potential victim, despite the confidentiality requirements of the psychologist-patient relationship, Tarasoff v. Regents of the University of California (1976) 17 Cal. 3d 425, the duty of the State of California to warn a foster parent of the risk of assault by a recently paroled foster child, Johnson v. California (1968) 69 Cal. 2d 782 and the duty to warn arising from a protected doctor-patient relationship, Tresemer v. Barke (1978) 86 Cal. App. 3d 656. Based on these historical precedents, the Ninth Circuit concluded:

As a result of our study of California law, it is clear to us that in some instances at least, the California Supreme Court would impose a duty on a private employer to warn a former employee of foreseeable dangers to which the employee had been exposed in the course of his employment. Id. at 1023.

The Ninth Circuit in Molsbergen also held that the Feres Doctrine did not apply. The Feres Doctrine limits an injured employee of the federal government to workers' compensation benefits for injuries occurring on-the-job and does not allow a jury to decide the nature and extent of injuries and the amount of fair compensation for such losses. The concept is also known as the "exclusivity rule" under California law which requires that an injured worker can only seek redress before the Workers' Compensation Appeals Board, i.e. workers' compensation benefits are the "exclusive" remedy available to an injured worker and lawsuits in the Superior Court against employers are prohibited. The Ninth Circuit held that Feres did not bar a direct claim against the former employer for post-discharge failure to warn based on misconduct after the pilot was discharged and that the pilot was entitled to sue the United States government in the U. S. District Court.

The duty to warn in cases when new information is gained by the employer after employment is terminated that would be of benefit to the former employee is consistent with elementary, basic and longstanding California negligence law. The rule is well summarized by the following instruction from the California Book of Approved Jury Instructions, BAJI Instruction 3.11:

One test that is helpful in determining whether or not a person was negligent is to ask and answer the question whether or not, if a person of ordinary prudence had been in the same situation and possessed of the same knowledge, he would have foreseen or anticipated that someone might have been injured by or as a result of his action or inaction. If the answer to that question is "yes," and if the action or inaction reasonably could have been avoided, then not to avoid it would be negligence. [Emphasis added.]

Because this test for negligence under California law is not whether an injury is probable, but merely if it foreseeable that someone "might" be injured, California placed the highest level of importance on preventing injuries whenever they can be avoided. Common sense dictates that former employees be warned when an employer gains additional information about hazards associated with chemicals the employer required former employees to use that would benefit the employee. The law in large part is based on common sense and what is reasonable under the circumstances. It cannot be denied that former workers required as a condition of their employment to be exposed to high toxic carcinogens should receive fair warning of new scientific development that will aid them.

An employer is in a unique position to provide such warnings to former employees for a number of reasons.

First, employers always know the exact chemicals used in their fabrication and manufacturing processes and should know the hazards presented by those chemicals. This information is obtained from several sources. Material Safety Data Sheets, prepared by chemical manufacturers, explain the effects of substantial exposures, but routinely do not explain the hazard of low levels of exposure on a daily basis over long period of time.

Second, because of the employer's continuing responsibility to provide a safe place to work for current employees, an employer regularly learns of new medical and health safety information not previously known. New MSDSs are generated by responsible chemical companies as information becomes available. The best informed persons concerning recent scientific discoveries are occupational, safety and health managers of employers who are responsible for protecting workers from occupational safety and health hazards in the workplace. Routinely these company doctors, industrial safety specialists, and industrial hygienists, receive information of new medical developments, epidemiological studies, animal and human scientific research which in some cases ban the future use of previously used chemicals or imposes more stringent limitations on continued use because of safety and health concerns. These specialists should also recognize that MSDSs routinely report on the effects of acute exposures, but rarely discuss long-term, low level, daily exposures to chemicals, or so-called "chronic" exposures, associated with cancers and birth defects. It is because of this not uncommon failing of MSDSs and the historical failure of many chemical manufacturers to acknowledge and warn of chronic effects that scientific literature is monitored by responsible employers and their industry associations.

Third, chemicals that are carcinogenic alter chromosomes and it is not uncommon for these chemicals to also cause birth defects. Exposure of parents to chemicals before and during conception, as well as during pregnancy, can cause birth defects which are not evident until years later. Information about chemical exposure can aid in the diagnosis and treatment of children suffering from these exposures.

Fourth, many chemicals commonly used in modern industry, such as benzene, carbon tetrachloride, diazoaquinone, dichlorofluoromethane, dichloromethane, dioxane, epichlorohydrin, ethanol, ethyl acetate, ethylene glycol, ethylene glycol monoethyl ether, ethylene glycol monoethyl ether acetate, ethylene oxide, formaldehyde, freon, hyrdoquinone, isophorone, iosopropyl alcohol, methyl ethyl ketone, methyl cellosolve, morpholine, n-hexane,nitromethane,organic solvents, phenol, phenolformaldehyde,sodium nitrite, tetrachloroethylene, tetrahydrofuran,toluene, trichloroethane, thichloroethylene, trichlorofluoromethane, triethanolamine, vinyl acetate, vinyl chloride, and xylene [a partial list] which are associated with cancer in published scientific and medical articles. The scientific literature on these chemicals is growing as new evidence concerning such chemicals is discovered, reported in medical journals published throughout the world and posted in data banks readily found on the Internet.

Fifth, numerous industrial chemicals and solvents associated with cancers have long latency periods. Daily exposure to low levels of carcinogens can result in cancer 5 to 20 years later. Monitoring for conditions for which an employee is at risk can promote early detection, diagnosis and treatment. In short, knowing what to look for medically can save lives and reduce human suffering.

Sixth, employers can readily identify former employees at risk, the departments where the employees worked, the chemicals used in those specific manufacturing processes, and have available, social security, tax, pension, retirement, medical insurance and other records which allow them to easily locate and contact these former employees to share with them newly discovered medical and scientific information.

It is common sense that workers who have been required to work with dangerous chemicals should receive newly developing information concerning potential health problems so they can monitor their health and obtain the earliest diagnosis and treatment. This is true for both current and former employees. Accordingly, California requires employers to provide both current and former employees with reasonable warnings concerning such chemicals as new information is received by the employer.

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