On September 16, 2026, the California Division of Occupational Safety and Health posted a discussion draft of regulatory text that would end the fabrication of engineered stone countertops in California. The draft adds a new section 5204.1 to Title 8 and amends sections 5204 and 1532.3 to prohibit the manufacture and fabrication of artificial stone containing more than 1.0 percent crystalline silica. Written comments go to the Cal/OSHA Research and Standards Branch by September 30, 2026.
This is the composition rule the industry has been waiting for, and it changes the frame of the silicosis story. Until now the question was whether engineered stone could be cut safely under an exposure standard. Cal/OSHA’s answer, in regulatory text, is that the material itself is the hazard. That conclusion is now a matter of state regulatory record, and it will be read into every contested workers’ compensation claim, every serious-and-willful petition, and every product case that follows.
It is also late. According to Public Health Watch, which first reported the Southern California silicosis cluster in December 2022, the state had confirmed 644 cases of silicosis and 35 deaths as of September 10, 2026, among the mostly immigrant workers who cut, grind, and polish these slabs. The draft rule sets no adoption date. One plaintiffs’ lawyer quoted in the story put the arithmetic plainly: on average, a California fabrication worker is diagnosed every day, and one dies every month.
How California Got Here
The regulatory path has been unusually fast by California standards and unusually slow by the standards of the disease. In December 2023, the Standards Board approved an emergency temporary standard on respirable crystalline silica, made permanent in February 2025. In October 2025, the Legislature enacted Senate Bill 20 (Stats. 2025, ch. 734), the Silicosis Training, Outreach, and Prevention Act, which prohibited dry cutting, required effective wet methods and annual training attestations, expanded the Department of Public Health’s surveillance role, and made silicosis a mandatory reportable condition.
None of it stopped the epidemic. In December 2025, the Western Occupational and Environmental Medical Association filed Petition File No. 609, asking the Board to prohibit all fabrication and installation of artificial stone above 1 percent crystalline silica. Cal/OSHA’s own evaluation of the petition concluded that the material is inherently dangerous and that section 5204, built as a performance standard for well-resourced employers, is difficult to enforce against a fragmented shop industry. On May 21, 2026, the Board granted the petition in part and directed Cal/OSHA to prepare a finding of emergency and to convene advisory committees. Cal/OSHA held its advisory meeting in Oakland on July 31, 2026. The September 16 draft is the product of that process.
The medical record supporting it is now substantial. The NEJM Evidence public health alert published August 12, 2026, by Heinzerling and colleagues at the Department of Public Health documented 592 cases through June 2026, including 65 lung transplants and 31 deaths, with a median age of 46 at diagnosis and 52 at death, and 98 percent of patients were Latino men. The state’s Engineered Stone Silicosis Surveillance Dashboard is updated weekly and has kept climbing since. The Los Angeles Times reported that cases rose more than tenfold in under four years, and quoted co-author David Michaels, the former head of federal OSHA, describing damage that likely reaches thousands of workers nationally.
What the Draft Changes, and What It Does Not
A composition rule is a different legal instrument from an exposure rule, and the difference matters to claims practice. An exposure standard asks whether a particular employer controlled dust on a particular day. A prohibition on the material declares that no level of control is adequate. Three consequences follow.
First, the draft is prospective only. It reaches manufacture and fabrication going forward. It does nothing for the 644 workers already diagnosed or the far larger group already exposed and not yet diagnosed.
Second, it is not yet law. The draft is a discussion document open for comment through September 30. Cal/OSHA must still prepare a finding of emergency, the Standards Board must adopt, and the Office of Administrative Law must approve, with its own brief comment window. An emergency standard would run one year while permanent rulemaking proceeds. Industry opposition is organized and well funded, and no adoption date has been set.
Third, and most important for this audience, a ban ends exposure but not liability. Silicosis progresses after exposure ceases. Latency, misdiagnosis, and the slow arrival of claims mean that the compensation consequences of the last two decades of fabrication will be litigated well into the 2040s.
Why This Matters for Compensation Claims
The state has now said the product cannot be used safely
Occupational disease claims turn on medical causation, and this record largely settles it. Cases were confirmed using the NIOSH surveillance case definition together with a documented history of countertop fabrication. A treating physician or medical-legal evaluator linking a fabricator’s fibrotic lung disease to engineered stone now stands on published state surveillance data and on a regulatory finding that the material is inherently hazardous.
In New Jersey a petitioner must show that the workplace exposure contributed to the disease in a material degree, the standard the Supreme Court applied in Fiore v. Consolidated Freightways, 140 N.J. 452 (1995). For a disease with a single well-characterized occupational cause, that burden should be met in most fabrication cases. The hard cases remain the misdiagnosed ones, where the chart shows years of treatment for sarcoidosis or tuberculosis before anyone asked what the patient did for a living. Under Fiore, that history goes to weight and timing, not to whether the disease is occupational.
The limitations clock still runs from knowledge
California Labor Code section 5412 fixes the date of injury as the date the employee first suffered disability and knew, or should have known, that it was caused by employment. N.J.S.A. 34:15-34, which names silicosis in its text, bars an occupational disease petition only if it is not filed within two years after the claimant first knew the nature of the disability and its relation to the employment, the knowledge standard construed in Earl v. Johnson & Johnson, 158 N.J. 155 (1999).
Publicity around a ban cuts both ways. A worker told for years that he had sarcoidosis did not know the nature of his disability. But a widely covered prohibition, combined with the reporting infrastructure SB 20 created, gives the defense a date on which to argue that knowledge arrived. Claimants’ counsel should document exactly when, and in what language, a worker was first told that his disease came from the stone he cut.
Serious and willful misconduct in the window before the ban
California Labor Code section 4553 increases the compensation otherwise recoverable by one-half when an injury results from the serious and willful misconduct of the employer or its managing representatives, and that penalty is generally uninsurable, so it falls on the employer directly. SB 20 prohibits dry cutting outright, requires effective wet methods and annual training attestations to Cal/OSHA beginning July 1, 2026, and amends the Cal/OSHA definitions so that silicosis and silica-related lung cancer qualify as a serious injury or illness.
The draft ban sharpens the point rather than mooting it. Every shop that keeps fabricating during the comment period, the adoption period, and any phase-in does so with the state’s formal conclusion on the record that the work cannot be performed safely. A Cal/OSHA citation for dry cutting at the shop where a claimant worked is the evidence that converts a routine claim into a serious and willful petition, and the Department of Industrial Relations reports that the silica special emphasis program has already produced more than 900 citations carrying roughly $1.9 million in proposed penalties.
Exclusivity has cracks for concealment
The exclusive remedy rule ordinarily confines these workers to compensation benefits. California has recognized since Johns-Manville Products Corp. v. Superior Court, 27 Cal. 3d 465 (1980), that an employer who fraudulently conceals an employee’s occupational disease and its connection to the work, and thereby aggravates it, may be sued at law for the aggravation. The Legislature codified that exception in Labor Code section 3602(b)(2), and in Foster v. Xerox Corp., 40 Cal. 3d 306 (1985), the Supreme Court held that affirmative misrepresentations are not required.
New Jersey reached a parallel result on asbestos facts in Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985), where company physicians concealed disease from exposed workers, and refined the intentional wrong exception in Laidlow v. Hariton Machinery Co., 170 N.J. 602 (2002), around conduct substantially certain to cause injury. A published regulatory finding that a material cannot be safely fabricated is precisely the kind of knowledge that makes a substantial-certainty argument available. Shop owners who keep a diagnosed worker cutting, or who sit on screening results, should expect Johns-Manville, Millison, and Laidlowto be tested against engineered stone facts.
Which employer pays, and what if none was insured
Fabrication workers move between small shops, typically businesses with fewer than 10 employees, according to KQED. California Labor Code section 5500.5 limits occupational disease liability to the employers during the last year of injurious exposure, lets the worker proceed against any one or more of them for a joint and several award, and addresses the uninsured problem directly. If none of those employers carried coverage, liability shifts to the last year of exposure with an insured employer, which may then seek reimbursement from the unlawfully uninsured shops.
A ban raises the stakes on that provision. Shops that close rather than convert will not be available to answer claims filed years from now, and the last-year-of-exposure rule will increasingly point to employers that no longer exist. Section 5500.5 already contains special silicosis provisions written generations ago for underground metal miners. The drafters could not have imagined that the next silicosis epidemic would come from kitchen remodeling, or that the responsible employers would vanish by regulation.
Transplants and lifetime medical exposure
Senator Caroline Menjivar’s office has noted that a lung transplant can cost upwards of $1.3 million. With 23 percent of the documented California cohort referred for transplant evaluation, these claims carry lifetime medical exposure measured in seven figures, followed by anti-rejection therapy, pulmonary rehabilitation, and surveillance for tuberculosis and autoimmune disease. The legislative findings in SB 20 describe the affected workers as mostly reliant on public insurance or uninsured. Public programs are paying for care that is industrial by any fair measure.
Immigration status does not defeat the claim
The workforce is young immigrant men, 98 percent originating from Mexico or Central America, and KQED has reported that many are undocumented. Fear suppresses claim filing, and a ban that closes shops will not make workers more willing to come forward. California law is clear: Labor Code section 1171.5 makes all state-law protections, rights, and remedies available regardless of immigration status, declares status irrelevant to liability, and bars discovery into status absent a clear and convincing showing of necessity under federal law. Clinicians, advocates, and counsel should say so plainly to these workers, and in Spanish.
The federal countermove
While California moves to ban the product, Congress is considering immunity for the companies that sell it. H.R. 5437, the Protection of Lawful Commerce in Stone Slab Products Act, would bar civil actions against stone slab manufacturers and sellers for harm arising from downstream fabrication and would require dismissal of pending cases. The House Judiciary Committee ordered it reported, as amended, by a 16 to 7 vote on June 3, 2026. Product verdicts against slab manufacturers are multiplying, including a $52.4 million Los Angeles verdict against Cambria now on appeal, according to KQED.
Those recoveries matter to the compensation system because employers and carriers hold credit and lien rights against third-party recoveries. A California ban paired with a federal liability shield would produce a perverse result: the product gone, the workers still sick, and the entire cost resting on employers, their insurers, uninsured employer funds, and public programs, with no third-party recovery to reimburse anyone.
The Bottom Line
The September 16 draft marks the moment California stopped trying to regulate the dust and moved to eliminate the material. That is the right conclusion, and it arrives 644 cases and 35 deaths after the first one. For injured workers, the draft strengthens causation, supports serious and willful claims, and confirms that the hazard was inherent rather than incidental. For employers and carriers, it signals long-tail medical exposure, uninsurable penalties, disappearing employers under the last-year-of-exposure rule, and a live question in Congress about whether third-party recoveries will survive at all. A ban ends the exposure. It does not end the claims, and it does not reach anyone already breathing the dust.
Sources
1. Cal/OSHA, Emergency Rulemaking to Prohibit the Fabrication of Engineered Stone Countertops Containing More than One Percent Crystalline Silica (discussion draft posted Sept. 16, 2026; comments due Sept. 30, 2026).
2. Cal/OSHA, "Crystalline Silica Activities Strictly Prohibited," 9-16-26 Discussion Draft (proposed new section 5204.1; amendments to sections 5204 and 1532.3).
3. Jim Morris, "California Unveils Draft Rule to Ban Artificial-Stone Countertops", Public Health Watch (Sept. 16, 2026).
4. Heinzerling A, Flattery J, Cummings KJ, et al., "Silicosis among Workers Fabricating Engineered Stone ('Quartz') Countertops in California, 2019-2026", NEJM Evidence 2026;5(9), DOI: 10.1056/EVIDpha2600187 (Aug. 12, 2026).
5. Karen Garcia and Clara Harter, "Hundreds of California stonecutters fall ill with deadly disease 'for a product we do not need'", Los Angeles Times (Aug. 12, 2026).
6. California Department of Public Health, Engineered Stone (ES) Silicosis Surveillance Dashboard.
7. Occupational Safety and Health Standards Board, Petition File No. 609.
8. Cal/OSHA, Evaluation of Petition File No. 609.
9. California Department of Industrial Relations, News Release 2026-45, "Standards Board Advances Efforts to Protect Workers from Silicosis" (May 22, 2026).
10. California Senate Bill 20 (Menjivar), Stats. 2025, ch. 734, chaptered text.
11. Office of Sen. Caroline Menjivar, "SB 20, Silicosis Training, Outreach, and Prevention (STOP) Act Heads to Governor Newsom" (Sept. 10, 2025).
12. Farida Jhabvala Romero, "As California Silicosis Cases Rise, Engineered Stone Industry Seeks Immunity in DC", KQED (Jan. 15, 2026).
13. H.R. 5437, Protection of Lawful Commerce in Stone Slab Products Act, 119th Cong. (Congress.gov).
14. H.R. 5437 Action Timeline, The Lobby (committee action of June 3, 2026).
15. Cal. Lab. Code section 5412.
16. Cal. Lab. Code section 5500.5.
17. Cal. Lab. Code section 4553.
18. Cal. Lab. Code section 1171.5.
19. N.J.S.A. 34:15-34.
20. Johns-Manville Products Corp. v. Superior Court, 27 Cal. 3d 465 (1980).
21. Foster v. Xerox Corp., 40 Cal. 3d 306 (1985).
22. Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985).
23. Laidlow v. Hariton Machinery Co., 170 N.J. 602 (2002).
24. Fiore v. Consolidated Freightways, 140 N.J. 452 (1995).
25. Earl v. Johnson & Johnson, 158 N.J. 155 (1999).
Recommended Citation
Jon L. Gelman, The Ban Arrives Late, Workers' Compensation (workers-compensation.blogspot.com) (Sept. 16, 2026), https://workers-compensation.blogspot.com/2026/09/the-ban-arrives-late.html.
About the Author
Jon L. Gelman of Wayne, NJ, is the author of NJ Workers' Compensation Law (West-Thomson-Reuters) and co-author of the national treatise Modern Workers' Compensation Law (West-Thomson-Reuters).
Blog: Workers' Compensation
LinkedIn: JonGelman
LinkedIn Group: Injured Workers Law & Advocacy Group
Author: "Workers' Compensation Law" West-Thomson-Reuters
Blue Sky: jongelman@bsky.social
Substack: https://jongelman.substack.com/
© 2026 Jon L Gelman. All rights reserved.
Attorney Advertising
Prior results do not guarantee a similar outcome.
No comments:
Post a Comment