A/HRC/42/41 suppression orders) should be unenforceable when used to suppress knowledge about toxic substances and the tactics used to promote their use, given the strong public interest in disclosure (see also principle 9). Principle 13 – Workers or their families should not bear the burden of proving the cause of their illness or disability to access an effective remedy. Commentary 84. Placing the burden of proof on those harmed by toxic substances at work can be an enormous and often insurmountable challenge in securing accountability and access to an effective remedy for violations arising from exposure to toxic substances. 73 If unaddressed, this can render the rights held by workers regarding their life, health and physical integrity unenforceable with regard to toxic exposures and foster catastrophic impunity for the exploitation of workers by such exposures. 85. The types of information required and the responsibility for proving the cause of harms suffered are often common denominators in cases where workers struggle to access effective remedies. Workers often lack the necessary knowledge and resources to enable them to establish the necessary elements for accessing remedies. First, it is not uncommon for them not to know which substances they were exposed to. Second, substances to which they were exposed may not have been studied for their potential to cause disease or disability in humans; adequate information, and even a minimal amount of health and safety data, is lacking for tens of thousands of potentially toxic industrial chemicals. Third, when allegations of exposure to toxic substances are made, “objective evidence of the extent of, or even the existence of, exposure is almost never available”;74 although it should be the responsibility of the employer to track and maintain such data, the failure to do so is used to justify the unacceptable denial of remedies to sick and impaired workers. Finally, workers often move between employers and industries, which can subject them to a diversity of toxic exposures. The personal behaviour of workers, such as tobacco or alcohol use, may be invoked to further complicate the determination of causation. 86. In various circumstances, States have shifted the burden of proof to the employer or other beneficiary of services.75 In other cases, judicial and non-judicial mechanisms have lessened the burden of proof on workers to help ensure access to remedies. 76 87. States should ensure that when there is information that a worker may have been exposed to toxic substances at work and where such exposure has been demonstrated to cause harm in similar situations, the burden should shift to the employer to disprove concerns with reasonable certainty. 77 This may be particularly appropriate where the facts and events relevant to resolving a claim lie wholly or in part within the exclusive control of the employer or another party. 88. Information that a worker may have been exposed to toxic substances need not be in the form of exposure levels or identification of the precise chemical; it can also include information that occupational diseases are known to have occurred in a particular type of work or industry. The employer or other beneficiaries of services should be allowed to rebut the presumption of responsibility, but the burden should be on the employer. 73 74 75 76 77 18 A/HRC/39/48 and Corr.1, paras. 70–71. Junius C. McElveen Jr., “Establishing proof of exposure”, Lexology, 2012. See First Responder Center for Excellence, “Occupational cancer legislation: presumptive legislation for firefighter cancer by State”, available at www.firstrespondercenter.org. See also United States Court of Appeals for the Fifth Circuit, Borel v. Fibreboard Paper Products Corp., 1973. See further, e.g., United Kingdom House of Lords, Fairchild v. Glenhaven Funeral Services Ltd., 2002. McElveen, “Establishing proof of exposure”. If the employer no longer exists or cannot otherwise provide an effective remedy to the worker, alternative recourse should be available.