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OSHA rules on toxic substances seen as having limited effect on liability


Workplace safety regulations lowering exposure thresholds to certain toxic substances are not expected to have a significant effect on the insurance market for these risks despite the potential for additional third-party litigation.

The U.S. Occupational Safety and Health Administration’s regulations decreasing the permissible exposure limits for silica and beryllium are aimed at improving workplace safety and are seen as more of a workers compensation liability issue. But workers comp does not bar injured employees from suing third parties, which could create liability for companies via third-party action over claims.

“Here in Texas, you’re not required to carry comp,” said Mark Gaskamp, managing director for insurance brokerage Wortham L.L.C. based in Austin, Texas. “So if you have a subcontractor that was doing something they shouldn’t have, you could get some kind of backdoor liability case through an employee action over claim.”

Construction projects may involve sandblasting or other activities that would expose workers employed by another contractor or individuals living or working near construction sites to silica dust, said Robert Adams, a Vancouver, Washington-based principal with global environmental and engineering consulting firm Ramboll.

“I think there is some third-party risk that can occur to people who … might be present but aren’t the people OSHA was targeting,” he said. “We definitely see the potential for these kinds of community exposures.” 

General liability policies may provide coverage for action over claims, but many policies have had silica exclusions for years, said Jeff Slivka, president of New Day Underwriting Managers L.L.C. in Hamilton, New Jersey.

“I don’t think from an insurance standpoint there is going to be any change, because we’ve either excluded it under the general liability for years or we’ve accepted it under your contractors’ pollution liability policies for years,” he said.




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