Opinion
Personal Liability for Your Negligence? Why OHS Pros Today Need a Legal Mindset
Two recent research articles will soon create a lot of buzz. It will be every politician’s delight. Consider the takeaway from this article, summarized as “Empirical evidence demonstrates that the PWFA has encouraged safer work conditions and saved 137,196 lives with a net cost savings for the US at $294.58 million dollars.”
The lives saved are fewer miscarriages. This means more births for the US enticing support for the PWFA from the pronatalist community within the Trump 2.0 administration. While accommodations in this article mostly address first trimester hazards that are easily solvable, this second article includes workplace hazards in the second and third trimesters of pregnancy that generally requires some IH talent to accommodate.
History legal influence on OHS practices
Why does the US workers’ compensation system exist? WC exists as a “no fault” system to avoid litigation to determine compensation for workplace injury or illness. Why were the AIHA and ACGIH formed in the late 1930’s? Business created these “third-party” organizations to establish voluntary standards e.g. TLVs as a legal defense to offset the rise of lawsuits from workers in the “dusty trades.” These third-party techniques remain valid today. The entire US ebbs and flows on “legal” issues which is why today about one in every three US House members and one of every two US Senators were lawyers or had some other legal background before joining Congress. Twenty-seven former US presidents were lawyers.
Departmental influence
How OHS pros think is presumed to be greatly influenced by what department they work under within their organization. For example, OHS pros that report through the safety and health department are mostly influenced by OSHA compliance. OHS pros that report to HR lean more to a workers’ compensation mindset. OHS pros that report through production are heavily influenced by costs and hierarchy of controls.
The National Safety Council’s 2025 Salary Survey finds that 59% of OHS pros reside in an EHS department, 11% reside in HR/administration, and 10% reside in operations/production. OHS pros that are least represented at 1%, reside in the legal department of their organization.
Experience
I spent over thirteen years in a corporate legal department. How to prevent or defeat an OHS-related lawsuit or other legal challenge has long been my prevailing thought. Convincing the other 99% of OHS pros I engage with that legal concepts should prevail in their thoughts has been a great challenge. Be aware there is a difference between a lawyer and a litigator. Litigators practice before the courts and are very high in demand today.
PWFA
The PWFA is administered by the EEOC. The EEOC doesn’t issue fines. The EEOC opens the door for a person’s “right to sue.” The PWFA primarily deals with the employer providing reasonable accommodation for occupational health hazards related to pregnancy or health of the pregnancy. My main objective for getting the “industrial hygienist” title in the PWFA 2024 final rules is because of a legal mindset.
Success or failure?
My legal mindset is very cautious and concerned about failures that may be identified in future PWFA research. A child born with “damage” from a workplace hazard generally has legal standing for a tort lawsuit. State courts are leaning toward giving rights to a future child beginning at conception. The US Supreme Court may have a say in this issue before the second Trump administration ends.
Essential elements
There are four essential elements that a plaintiff must demonstrate and prevail in a tort lawsuit: 1) Duty, 2) Breach of duty, 3) Causation, and 4) Damages. Novices on this topic generally believe that the defense usually wins at Causation because of the complexity of proof. But this is only true if a claim goes to trial. About 95% of tort claims are settled before the trial. If there is no trial, generally no or very little data on the claim reaches the public. At this juncture, because I am not a lawyer, you must confirm with a competent attorney the details of any legal issue.
Attack IH capabilities
If I represented the plaintiff in a workplace-related birth defect lawsuit, I would first attack the IH capabilities of the business. My objective is to humiliate the business’s duty failures. OSHA 1910.1000(e), for example, states that while complying with a chemical PEL, “Any equipment and/or technical measures used for this purpose must be approved for each particular use by a competent industrial hygienist or other technically qualified person.” If the defendant claims they were not complying with a PEL, but only conforming to a TLV, I would direct the defendants to the annual TLV booklet published by the ACGIH. The introduction to the booklet states, “TLVs and BEIs are guidelines to be used by professionals trained in the practice of industrial hygiene.” As an expert witness for the plaintiff, how probable is it that some people working in OHS positions could be found to lack “competent” or “professional” industrial hygienist capability.
Many organizations governed by OSHA, especially those in manufacturing and construction, are likely to have chemicals subject to OSHA HazCom 1910.1200 that contain the GHS hazard statement may “damage an unborn child.” The hazard statement will be accompanied by risk phrases that include seek “special instructions” before use. Lack of attention to these requirements may demonstrate a tort “breach of duty” in a tort lawsuit.
Breach of duty could also be demonstrated if no air sampling was conducted to determine if airborne exposures were safe for an unborn child. OSHA 1910.1020 requires that a record of air sampling be maintained for a minimum of 30 years. Employees are also required to be informed “initially upon hire and annually thereafter” about their right rights access to records, including all SDSs or a chemical inventory. An interview or questionnaire of employees would determine if this requirement was fulfilled. Purchase records could be reviewed to determine if any air sampling equipment was bought since 2012. If air sampling equipment was bought, they would be expected to have been used, and records of the results would need to be located in the files and examined to determine if the sampling and results conformed to professional IH practice.
The PWFA does not negate OSHA or any other laws. Other laws support the PWFA. Because of new and future research on PWFA success or failure, my legal mindset suggest that now is the time for every IH to be very attentive to the PWFA and its opening for tort negligence suits, as a separate issue. Audit and practice a tort defense. Avoid any findinAgs of negligence. If you neglect to review or misunderstand data in the links below, that could be a demonstration of negligence. There is an implied duty to know these kinds of information.
References
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