The risks associated with PFAS-containing materials are expanding into new areas, as litigation and regulatory enforcement actions continue to rise. Recent trends suggest that employers who provide fire protection gear to their employees and contractors may find themselves facing potential liabilities.
PFAS and Recent Settlements
Poly- and perfluoroalkyl substances (PFAS) are a class of approximately 15,000 synthetic chemicals, many of which are highly fire-, water- and grease-resistant. Certain PFAS chemicals, particularly long-chain non-polymeric PFAS, have been classified as persistent, bioaccumulative and toxic, and among these, some have been linked to health risks, though the science surrounding PFAS as a whole is still developing.
The past several months have witnessed several high-profile tentative settlements regarding PFAS-related liabilities, as primary manufacturers of PFAS, such as 3M, DuPont de Nemours, Inc., Chemours Company and Corteva, Inc. agreeing to pay perhaps as much $13.5 billion in all to resolve claims involving impacts to public water systems. These settlements, which are expected to be finalized in the coming months, pertain to a distinct set of claims being adjudicated in a multidistrict litigation (MDL-2873) in the U.S. District Court for the District of South Carolina.1 This MDL is a consolidation of over 7,000 lawsuits related to PFAS contamination brought against primary and secondary manufacturers of PFAS-containing aqueous film-forming foam (AFFF), a firefighting agent used since the 1970s. Notably, however, certain complaints allege that the defendants have produced firefighting turnout gear and other protective equipment that contains PFAS. (These cases have not yet been set for trial and are unlikely to do so in the short term. For now, they stand behind the “Telomer-AFFF Water Provider” bellwether cases, four of which have been selected to go to trial in August 2024.)
Turnout Gear and PFAS
Turnout gear is widely used in industries that entail substantial risks of fire, such as firefighting, oil and gas refinery work, and mining. Most turnout gear consists of several layers of textiles. The outermost layer is the most likely to contain PFAS, which function to create a moisture barrier and protective shell to improve the textile’s resistance to heat and water. Indeed, the National Fire Protection Association, the leading nonprofit authority on fire protection standards, has developed performance standards for turnout gear, which, to date, can only be met through the use of PFAS.
Concerns regarding the presence of PFAS in turnout gear first emerged in a serious way in 2020, when a University of Notre Dame study identified levels of PFAS in 30 new and used turnout jackets made by six different manufacturers that resulted in levels of total fluorine up to 2%, indicating high PFAS levels. More recently, on May 1, 2023, the National Institute of Standards and Technology (NIST) published a PFAS evaluation of 20 different textiles used in turnout gear. The report identified the presence of PFAS in each textile, with certain products containing as many as 17 different PFAS, the most frequently quantified of which were short-chain perfluorocarboxylic acids: perfluorobutanoic acid (PFBA), perfluoropentanoic acid (PFPeA) and perfluorohexanoic acid (PFHxA). The report, however, also stressed the need for additional research on the presence of PFAS in turnout gear as well as the potential for harmful exposure through dermal contact.
Concerns regarding the potential effects of PFAS in firefighting apparel have even garnered legislative attention, as bills proposing the elimination of PFAS-containing turnout gear have been proposed at multiple levels of government. At the federal level, Congresswoman Debbie Dingell introduced the Protecting Firefighters and Advancing State-of-the-Art Alternatives (PFAS Alternatives Act), which would authorize $25 million annually to support the development of new alternatives to PFAS-containing turnout gear. The bill currently has 38 cosponsors but has yet to receive a hearing. States are also considering legislation addressing the presence of PFAS in turnout gear. In the Massachusetts state senate, a proposed bill would require manufacturers to notify purchasers of the presence of PFAS in the firefighting protective equipment and prohibit the sale of “any firefighting personal protective equipment” that contains PFAS.
Absent conclusive data eliminating the dermal contact pathway as a health risk, the uptick in litigation involving personal injury claims due to occupational exposures to PFAS-containing turnout gear is unlikely to diminish. To date, firefighters have filed lawsuits against more than 40 turnout gear manufacturers, in multiple jurisdictions, including Massachusetts, New York, and South Carolina, alleging that their turnout gear has given rise to cancer and other serious medical conditions.2 In such a climate, it may be only a matter of time until employees seek recovery for similar alleged injuries from employers who require them to wear fire-resistant apparel for occupational tasks.
Managing Risks Associated with PFAS-Containing Turnout Gear
In the long run, employers may turn to PFAS-free brands of turnout gear; however, because such products are not yet present on the market, for now, interested employers will have to consider alternative means of mitigating or offsetting PFAS-related liabilities. Among other things, they may wish to develop specific protocols and procedures, perhaps to be incorporated within broader safety management plans, to reduce the risk. For example, to the extent that data is developed to indicate that PFAS exposure is likelier to occur once turnout gear has been exposed to high temperatures, employers may wish to consider the merits of implementing a practice of replacing worn outfits on a more regular basis, as opposed to, say, repairing them for reuse.
Insurance coverage is always a potentially valuable tool for offsetting liabilities, and in most states, the first line of defense for employers faced with employee claims for personal injury is usually workers’ compensation Insurance. Accordingly, employers who develop special protocols structured around the risks presented by PFAS in turnout gear may wish to consider the extent to which their actions or inaction may impair their rights to coverage under their workers’ compensation policies. Employers should, however, be careful to implement baseline safety measures accepted as standard industry practice and to avoid overly aggressive measures, even in good faith, which have the unintended consequence of exacerbating risks. In addition to workers’ compensation, employers should consider other insurance policies including Commercial General Liability policies depending on the nature and scope of the claims asserted against them by employees and/or third parties. State law may also differ among the different states so knowing the law in the employer’s particular state is not only essential but also something only a qualified lawyer can provide as opposed to, for example, an insurance broker or agent.
It is not too soon for employers to consider potential liability risks associated with the presence of PFAS in turnout gear and other fire resistance textiles used in personal protective equipment. At a minimum, such businesses would be well advised to begin tracking what constitutes standard industry practice with respect to the sourcing and use of particular brands of turnout gear. To the extent that PFAS-free alternatives become available, it may be worthwhile to consider their procurement, although this may yet be several years away. In the meantime, it may prove useful to consider the development of specific protocols and practices, as well as scoping out the coverages afforded by insurance policies. Additionally, potentially impacted businesses may wish to engage with lawmakers and the legislative process regarding the creation of new laws concerning the presence of PFAS in turnout gear. And, finally, knowing what insurance coverage may help you in the event of a claim—before the claim is brought—is best considered best practices.
1 In Re Aqueous Film-Forming Foams Products Liability Litigation, U.S. District Court for the District of South Carolina, case No. 2:18-mn-02873.
2 Joseph Marchetti et al. v. 3M Company et al., U.S. District Court for the Eastern District of Massachusetts, Case 1:22-cv-10251; Joseph Hayes et al. v. 3M Company et al., U.S. District Court for the Eastern District of New York, 1:22-cv-00845; In Re Aqueous Film-Forming Foams Products Liability Litigation, U.S. District Court for the District of South Carolina, case No. 2:18-mn-02873