The French Supreme Court (Cour de Cassation) continues to demonstrate its openness to compensation for anxiety-related claims.

In April 2019, the French Supreme Court opened the way for all workers exposed to asbestos to claim compensation for emotional distress, or "anxiety," caused by the fear of contracting a serious disease, even if claimants cannot demonstrate any actual physical harm. As a result of this decision, any worker who can demonstrate that his or her past exposure to asbestos may lead in the future to a serious medical condition may claim compensation from his or her current or former employer.

In its decision dated September 11, 2019, the French Supreme Court expanded the scope of this compensation to include all harmful or toxic substances. Therefore, an employee who demonstrates that he or she has: (i) been exposed in the workplace to a harmful or toxic substance generating a high risk of developing a serious disease; and (ii) developed anxiety resulting from such exposure, may seek compensation from his or her employer, provided that the employer did not implement certain minimum measures to ensure the employee's health and safety and the claim is made within a five-year statute of limitations.

While the September 11, 2019 decision applies to mine workers specifically, the broad wording of the French Supreme Court's decision leaves no doubt that compensation for "anxiety" should be considered open to all employees exposed to any "harmful or toxic substances," subject to the other conditions for such claims under French tort law.

At this time, the definition of "harmful or toxic substances" that may give rise to indemnification for "anxiety" is unclear. Under the current European Regulation on Classification, Labelling, and Packaging of Substances, or CLP, there are at least 4,000 substances that may qualify.

As was the case for asbestos, the case law of the French Supreme Court could lead to a large number of claims from employees or former employees claiming to suffer from "anxiety" who have worked on industrial sites using dangerous substances. In order for companies to limit their liability and defend against such claims, they will have to demonstrate that they have complied with their safety obligation and document the implementation and monitoring of adapted measures to protect their employees from exposure to such substances.