Who's Responsible for Workers’ Asbestos Exposure During Tenant Construction?
SITUATION
A shopping center leases space to a shoe store. The lease requires the tenant to install a new heating and air-conditioning system in the space. It also makes the tenant solely responsible for compliance with “all laws” in connection with the work. The tenant hires an HVAC contractor to do the work. The owner knows that the ceiling tiles contain asbestos but fails to notify either the tenant or contractor. Result: The contractor’s workers are exposed to asbestos and develop a form of cancer known as asbestositis. The workers sue the owner for damages, citing labor laws that require “employers” to warn and protect workers against work-related asbestos hazards.
QUESTION
Can the shopping center owner be liable for the HVAC workers’ cancer?
- Yes, because it owns the property and is thus liable for all work injuries.
- Yes, because it didn’t warn of the asbestos.
- No, because the owner isn’t the HVAC workers’ “employer.”
- No, because the lease makes the tenant solely responsible for compliance.
ANSWER
B. Under labor laws, the owner could and would be liable for failing to protect the HVAC workers from asbestos exposure.
EXPLANATION
Labor laws like the federal Occupational Health and Safety Act and its state equivalents (which, for simplicity’s sake, we’ll refer to collectively as “OSHA”) require “employers” to protect workers against work hazards. So if there’s asbestos at your site, you must protect any of your employees who may be exposed. And, as the site owner, you also have to protect the workers of contractors and subcontractors who work at the site who may be exposed. This scenario, which is based on actual court cases and OSHA guidelines, illustrates the key legal principles owners must understand to manage their OSHA asbestos liability risks.
OSHA asbestos rules specifically require site owners to ensure that workers who may be exposed are notified of the presence of asbestos at the site, regardless of who actually employs those workers. According to the regulation, “owners are often the only and/or best source of information” about the asbestos present at the site. The shopping center owner in this scenario didn’t provide the necessary notification; it deliberately allowed the HVAC workers to be put in harm’s way. As a result, it would face severe penalties under OSHA. So B is the right answer. (See OSHA Asbestos Standard, 29 CFR Section 1910.1001.)
WHY WRONG ANSWERS ARE WRONG
A is wrong because owners aren’t necessarily responsible for all work hazards at their site. They’re liable only for hazards that they create or are in a position to control. This includes hazards attributable to a dangerous condition in the land like the presence of asbestos; it doesn’t include hazards attributable to how the work is carried out (unless the owner actually controls how the work is done). Thus, the employer who actually controls the work—typically the contractor—is liable for things like wobbly ladders, defective tools, or unsafe work procedures.
C is wrong because: (1) OSHA asbestos duties apply not just to “employers” but to owners of a site where asbestos is present; and (2) those duties protect not just the owners’ own employees but any workers at the site who may be exposed.
D is wrong because OSHA duties are “nondelegable”—that is, you can’t transfer them to another person. So the lease clause purporting to make the tenant solely responsible for OSHA compliance is unenforceable—although the tenant may also have OSHA safety responsibilities for the work. Be sure to keep this crucial principle in mind when managing the liability risks associated with tenant construction work.
Practical Pointer: Don’t try to delegate your OSHA duties to tenants. But while you can’t make the tenant solely responsible for OSHA liability, you can and should require it to comply with OSHA and all other laws affecting the work. You should also specify that in giving your consent to the work, you’re not implying, representing, or warranting that the work complies with all of the applicable laws.