To what extent might employers face liability for “take-home” COVID-19 exposure cases brought by an employee’s family member? With dozens of such cases being pursued nationwide, the liability picture is coming into view.
While there is no established “leading case” on this emerging area of litigation, federal courts in Wisconsin and Maryland have held that public policy considerations bar liability against employers in those states as to a third-party who contracted the virus from an employee.1 Relatedly, the California Supreme Court has granted review of an action to determine whether, under California law, an employer owes a duty to its employees’ households to exercise ordinary care in preventing the spread of COVID-19. 2
Take-home exposure liability has previously been pursued in other personal injury litigation, with particular prevalence in the asbestos exposure context. As it relates to COVID-19 litigation, the following fact pattern is typical: an employee contracts COVID-19 while on the job; the employee “takes home” and transmits COVID-19 to a member of his or her household; that family member becomes severally ill or dies; and the family member (or their estate) files a lawsuit against the employer claiming that unsafe working conditions caused the COVID-19-related injuries.
The sample size is small, but there appears to be two notable, recurring themes in “take-home” COVID-19 rulings. First, courts have, to date, tended to lean on public policy considerations in refusing to impose liability on employers in these cases. In Ruiz v. ConAgra Foods Packaged Foods LLC, the Western District of Wisconsin held that imposing liability on the employer “would impose too great a burden on the [employer] and would enter a field with no reasonable or principled stopping point.”3 The court focused on the potential for unlimited liability, asking “whether there is any principled stopping point for determining whether an employer would be liable to A, B, and C, but not D and E.”4 Likewise, in Estate of Madden v. Southwest Airlines, Co., despite four of seven duty factors weighing in favor of imposing a duty on the employer, the court found that the two factors weighing against imposing a duty were consequential in refusing to impose a duty on the employer.5 Specifically, the court found the “floodgates” consequence of imposing a duty against Southwest to be especially influential.6 The court noted that “[s]uch a duty would significantly expand the field of potential liability,” and “finding a duty here would leave countless employers litigating countless COVID-19 third-party exposures . . . .” 7 As stated by the court in Ruiz:
In a pandemic that has resulted in some sixty percent of the United States population contracting the virus, it becomes increasingly impractical to focus on a single outbreak.8
Second, the courts have conducted a comparative analysis and have found meaningful distinctions between “take-home” cases in the COVID-19 context versus the asbestos exposure context.
In Ruiz, the court identified three important distinctions between asbestos and COVID-19 that justifies allowing liability in the former but not the latter.9 First, in asbestos cases, the employers create the danger (the plaintiffs contend) by deliberately exposing employees to asbestos-containing products.10 Second, the timing as it relates to an employer’s knowledge of the claimed hazard differs markedly.11 While plaintiffs allege in asbestos cases that employers had years if not decades to adjust their practices to prevent injuries, employers in “take-home” COVID-19 faced a much more novel hazard. The claims in Ruiz, for example, arose out of transmission in April 2020—the first month of the pandemic.12
The third and final distinction between these two types of claims involves transmissibility. Whereas a person can contract COVID-19 from a minimal encounter (i.e. elevator ride), an asbestos-related disease requires high levels of asbestos exposure over time.13Thus, while only a very small fraction of the population will ever develop an asbestos-related disease, there exists a large potential class of plaintiffs for take-home COVID-19 cases by virtue of the high transmissibility of the virus.14
On the heels of these decisions in Maryland and Wisconsin, the California Supreme Court also is expected to soon issue a ruling related to take-home COVID-19 cases. In Kuciemba v. Victory Woodworks, Inc., the United States Court of Appeals for the Ninth Circuit certified to the California Supreme Court the question of whether “an employer owe[s] a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19.”15 The California Supreme Court has accepted review of Kuciemba, with a ruling forthcoming that, from the perspective of the Ninth Circuit, will be one of “economic significance.”16 Like in Ruiz and Madden, public policy considerations are expected to loom large in Kuciemba.
Aside from the question duty of care, another legal issue confronting courts in “take-home” COVID-19 litigation is the application of worker’s compensation exclusivity principles. In Kuciemba, the question of whether “California’s derivative injury doctrine bar[s] the spouse’s claim against the employer” also was certified to the California Supreme Court, despite the holding in a California Court of Appeal’s case that “the derivative injury rule does not bar claims brought by an employee’s spouse against an employer for injuries arising from a workplace COVID-19 infection.”17 Likewise, in Estate of de Ruiz by Ruiz v. ConAgra Foods Packaged Foods, LLC, the United States District Court for the Eastern District of Wisconsin held that Wisconsin’s worker’s compensation exclusivity statute18 did not bar a tort claim brought by the estate of an employee’s spouse because “the estate’s causes of action do not derive from a workplace injury.”19
So, in short, while courts are not foreclosing “take-home” COVID-19 cases on worker’s compensation exclusivity principles, the duty of care question has, thus far, proven to be more of a hurdle for family members who pursue personal injury or wrongful death claims.20 So, in short, while courts are not foreclosing “take-home” COVID-19 cases on worker’s compensation exclusivity principles, the duty of care question has, thus far, proven to be more of a hurdle for family members who pursue personal injury or wrongful death claims.
