- Occupational disease employer liability: The employer is liable according to article 7:658 BW if he fails to fulfill his duty of care.
- Occupational diseases develop due to prolonged exposure to harmful factors at work, such as chemicals, asbestos, RSI, and burnout.
- Compensation can include medical costs, loss of income, household help, travel expenses, and damages for pain and suffering.
- The burden of proof lies with the employer to demonstrate that he has fulfilled his duty of care.
- If you suspect an occupational disease, contact a specialized personal injury lawyer immediately.
What is an occupational disease?
An occupational disease is an illness caused by exposure to harmful factors during work or by the nature of the work itself. Unlike an acute workplace accident, an occupational disease often develops gradually due to prolonged exposure to, for example, hazardous substances, physical overload, or psychological stress. Examples include conditions such as RSI (Repetitive Strain Injury), burnout, asbestosis caused by asbestos exposure, or lung problems due to toxic substances.
The distinction between a workplace accident and an occupational disease is legally important because liability and proof can be treated differently. With an occupational disease, it is often more difficult to show that the employer is liable because the damage does not occur at a single moment but over a longer period.
The employer’s duty of care according to article 7:658 BW
According to article 7:658 BW, the employer has a duty of care to ensure a safe and healthy working environment. This means he must take all reasonable measures to prevent employees from becoming ill due to their work. This concerns both preventing accidents and occupational diseases.
The employer must, among other things:
- Conduct a risk inventory and evaluation (RI&E) to map out health risks.
- Provide personal protective equipment, such as respiratory masks when exposed to harmful substances.
- Give proper instructions and training to employees on safe working practices.
- Supervise compliance with safety regulations.
- Monitor and address psychosocial workload (PSA) to prevent burnout and stress.
If the employer fails in this duty of care and as a result an employee develops an occupational disease, he can be held liable for the damage suffered.
When is the employer liable for an occupational disease?
The employer’s liability in the case of an occupational disease is based on article 7:658 BW. The employer must prove that he fulfilled his duty of care. This means that if you develop an occupational disease, the burden of proof rests with your employer to prove that he did everything reasonably necessary to prevent illness.
In practice, this may mean your employer must be able to demonstrate that he, for example:
- Conducted a proper RI&E.
- Took effective measures against exposure to harmful substances (such as asbestos, chemical substances, or fine dust).
- Implemented good preventive measures against physical overload (such as with RSI) and psychological stress (such as with burnout).
- Provided you with sufficient instructions and tools.
- Regularly checked the working conditions.
If your employer cannot demonstrate this, he is legally liable for the consequences of your occupational disease and you can claim compensation.
Examples of occupational diseases and their liability
There are various occupational diseases that commonly occur and for which employers can be held liable:
Asbestosis and other asbestos-related diseases
Prolonged exposure to asbestos fibers can cause serious lung diseases including asbestosis, mesothelioma, and lung cancer. Workers in construction, industry, and shipbuilding were often at risk in the past because asbestos was not always safely removed. Today there are strict rules, but cases of damage from past exposure still occur regularly.
If your employer has not taken sufficient measures to prevent asbestos exposure, such as not providing protective gear or failing to properly clean the worksite, he can be liable. Compensation can be substantial due to the severe health damage and lifelong consequences.
RSI (Repetitive Strain Injury)
RSI is a collective term for complaints involving muscles, tendons, and nerves due to repetitive movements and prolonged overstrain, often in office environments. Think of frequent typing or mouse use without proper breaks or ergonomic workstations.
The employer has a legal duty of care to provide an ergonomically responsible workplace and inform employees about the importance of breaks and correct posture. Failure in this respect can result in employer liability.
Burnout and psychosocial workload
Burnout is often caused by prolonged work stress, high workload, workplace conflicts, or lack of support. The employer must ensure a safe psychological working environment under the Working Conditions Act and article 7:658 BW. This means recognizing and addressing signs of overload.
If you develop burnout due to employer negligence, such as ignoring complaints or not adjusting workload, the employer can be held liable for damages including income loss and damages for pain and suffering. Recently, damages for pain and suffering in burnout cases have been awarded between €5,000 and €20,000, depending on severity and duration of complaints.
Toxicological occupational diseases
Exposure to toxic substances such as chemical solvents, heavy metals, or hazardous fumes can lead to chronic health problems including cancer and neurological disorders. The employer must ensure adequate ventilation, safe procedures, and protective equipment.
Liability may arise if measures are insufficient. It is also important to prove the exposure and causal connection with the work.
What damages can you claim with an occupational disease?
If you have contracted an occupational disease due to employer negligence, you can claim the following damages:
- Medical expenses: costs for treatments, hospital stays, medicines, physiotherapy, and other medical care.
- Loss of income: the difference between your normal salary and what you receive during illness or incapacity.
- Future loss of income: if you can work less due to permanent limitations or must work in a lower-paid position.
- Household help: costs for help at home if you can no longer do everything yourself.
- Travel expenses: costs for traveling to practitioners and specialists.
- Damages for pain and suffering: compensation for non-material damage such as pain, grief, loss of enjoyment of life, and limitations in daily life.
The employer is usually insured through liability insurance that covers these damages. The costs of a personal injury lawyer are also reimbursed by the insurer in recognized liability cases on the basis of article 6:96 BW.
How can you report an occupational disease and protect your rights?
If you suspect you have contracted an occupational disease, follow these steps:
- Report your complaints immediately to your employer and request a risk file or record of your complaints.
- Visit your general practitioner or company doctor for a medical diagnosis and ensure the occupational disease is documented.
- Request a statement from the company doctor confirming that your illness is work-related.
- Keep all medical documents, correspondence, and evidence such as photos, working conditions, and witness statements.
- Report the occupational disease to the Dutch Center for Occupational Diseases (NCvB) if possible, which also helps with recognition of the disease.
- Contact a specialized personal injury lawyer experienced with occupational diseases and employer liability.
Frequently asked questions about occupational disease and employer liability
1. When is my employer liable for my occupational disease?
Your employer is liable if he has not fulfilled his duty of care as set out in article 7:658 BW, resulting in your illness. This means insufficient measures were taken to protect your health.
2. How long do I have to file a damage claim?
The limitation period for filing a damage claim is five years from the moment you become aware of the damage and the employer’s liability. It is advisable to seek legal assistance as soon as possible to safeguard your rights.
3. Can I receive damages for pain and suffering for an occupational disease such as burnout or asbestosis?
Yes, damages are awarded for immaterial harm such as pain, grief, and loss of life enjoyment. For burnout, this can range from €5,000 to €20,000, and for serious diseases like asbestosis or mesothelioma, amounts may be higher due to their life-threatening nature.
4. What should I do if my employer denies liability?
Engage a specialized personal injury lawyer who will investigate your case and gather evidence. The lawyer can negotiate with the insurer on your behalf and, if necessary, litigate to assert your rights.
Read also
- Personal injury after a workplace accident
- Hazardous substances and chemical burns at work
- Disabled after a workplace accident: WIA and reintegration
Contact Arslan & Arslan Lawyers
Have you contracted an occupational disease and suspect your employer is liable? Then do not hesitate to contact Arslan & Arslan Lawyers. Our specialized personal injury lawyers are ready to thoroughly investigate your case and assist you free of charge in claiming just compensation. We ensure you receive what you are entitled to.