When workers suffer a work-related injury or illness, they cannot generally sue their employers because of the “sole remedy” provision of workers’ compensation. But that doesn’t mean that injured employees can’t find someone to sue – usually, an employer other than their own. That’s what happened in the case of the Alaska Airlines flight attendants, when they complained that their new uniforms were causing skin rashes and respiratory symptoms.
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From their own employer, their compensation for their illness would have been limited to treatment for the various conditions they complained about, under workers’ compensation—if they could have shown that their medical complaints were, in fact, caused by the new uniforms. But the flight attendants didn’t simply seek treatment for their illnesses; instead, they filed a class-action suit against the uniform manufacturer, Twin Hill (a division of Men’s Wearhouse). Here’s how that lawsuit turned out—and how the National Institute for Occupational Safety and Health (NIOSH) affected the outcome.
Itching and Scratching
In 2011, Alaska Airlines provided all of its flight attendants with new uniforms made by Twin Hill. Before long, the attendants began reporting various uncomfortable symptoms, ranging from itchy rashes and hives to hair loss, respiratory symptoms, and thyroid dysfunction. The airline worked with its employees to solve the problem, which affected more than 400 flight attendants—ten percent of the airline’s flight attendant workforce.
The employees were not satisfied. They claimed that the uniforms had been found to contain a dye called Disperse Orange 37/76 and other chemicals as well. Disperse Orange 37/76 has been banned for use in clothing products because it is a known skin and respiratory irritant. In 2012, the flight attendants filed a class-action lawsuit against Twin Hill, asking for a total recall of the uniforms.
NIOSH Gets Involved
Also in 2012, the flight attendants’ union, the Association of Flight Attendants (AFA), asked the National Institute for Occupational Safety and Health (NIOSH) to perform a health hazard evaluation of the uniforms. NIOSH responded in October 2012, with a letter detailing why it did not believe that there was enough evidence of a causal link between the new uniforms and the flight attendants’ reported symptoms to warrant a health hazard evaluation. Among the evidence NIOSH cited as part of its decision were:
- The rate of symptoms reported. NIOSH compared the rates of skin irritation, respiratory symptoms, and eye irritation among the flight attendants to the rate among workers generally, and found that the rates reported by the flight attendants were not unusual. In other words, these maladies are reported by workers across all industries at about the same rate that the flight attendants were reporting; there was no significant excess number of reports.
- The variety of clothing items indicted. NIOSH also tried to determine which specific piece of the uniform might be causing problems for workers. What it found was that seven different uniform pieces, made from more than one type of fabric, were identified by workers as the source of their symptoms. No one piece of the uniform and no single fabric, was implicated in the workers’ symptoms significantly more than the rest.
- The symptom pattern reported by the workers. The workers reported rashes and other skin symptoms on their trunks, arms, necks, legs, hands, face, and armpits. But, according to NIOSH, “clothing dermatitis generally occurs in areas where clothing fits snugly, and the lesions are sometimes symmetrical.” These areas include the neck, major skin folds, and inner thighs. The workers did not report a significant number of symptoms in these areas.
- Chemical concentrations in the clothing. The clothing had been tested for chemicals and pH levels, and those test results were provided to NIOSH. NIOSH noted that all of the reported levels of chemicals found in the uniforms were well below the levels known to cause symptoms, sometimes by several orders of magnitude, and some of the chemicals tested were not present in detectable quantities.
The Court’s Decision
The lawsuit was filed in the U.S. District Court Central District of California, which decided the case on September 6, 2016. Relying heavily on NIOSH’s letter, the court found that the flight attendants failed to adequately support their claim that the uniforms caused their problems and should be recalled. “They have not provided sufficient evidence to overcome the NIOSH findings,” the court wrote in its decision.
Could It Happen to You?
You probably don’t think about “product liability” and “occupational health and safety” as overlapping. But if you have a contract to provide goods and services to another employer, and their workers are hurt by your product, bear in mind that the workers’ compensation “sole remedy” provision doesn’t cover you when it comes to any injury or illness the employees have suffered. Since they can’t sue their employer, they might go looking for someone they can sue—and it could be you.
Tomorrow we’ll look at a case in which an employee sued her employer for damages above and beyond workers’ compensation—and won.