More than two dozen “take-home” COVID-19 lawsuits have been filed around the country against employers that are being accused of not doing enough to protect workers who then contract the coronavirus and bring it home and infect others in their household.
The most prominent action has been happening in California and a handful of other states. There are a number of cases in play that were filed by workers’ families and friends who contracted COVID-19 from a worker who caught it on the job.
Employer groups and employment law attorneys are warning that these cases, if successful, could create a possibly endless chain of liability for employers. Some states have passed legislation absolving employers of any liability for COVID-19 infections among workers, workers’ contacts as well as customers.
The cases that are in play have been filed in state courts, federal courts and as workers’ compensation claims, which, if contested, are handled by administrative law judges that deal with these cases.
There are currently two bellwether cases that are being heard in federal and state appeals courts in California that legal experts are keeping an eye on. The cases could determine the trajectory of future litigation on this evolving topic if employers should be held liable for workers being infected by COVID-19 on the job and then spreading it to family members, friends and others in the community.
The case was filed by a worker for a construction firm and his wife after the worker says he caught COVID-19 at work and both he and his wife got so sick they had to be hospitalized. They sued the employer, with the wife accusing the company of negligence and the husband and employee claiming loss of consortium. They accused Victory Woodworks of violating San Francisco’s shelter-in-place order, thus causing them to get sick.
The U.S. District Court for the Northern District of California granted the employer’s motion for summary judgment and threw out the case on the grounds the couple’s claims against the employer were barred by the state’s California “derivative injury doctrine,” and it said the employer did not owe duty to them.
The ruling was appealed to the U.S. Court of Appeals for the Ninth Circuit, which has asked the California Supreme Court to provide guidance on two important questions:
- Whether the plaintiffs’ illnesses were an “injury” that was derivative of the husband’s work, which means that workers’ compensation is the only exclusive remedy, and
- If the state Workers’ Compensation Act does not apply, whether an employer can owe a duty to exercise ordinary care to prevent the spread of COVID-19 not only to its workers, but also to their households.
Depending on how the California Supreme Court rules, this case could become precedent-setting for other federal courts around the country to follow.
Case 2: See’s Candies vs. Superior Court
A See’s Candies worker caught COVID-19 in March 2020 while working on a packing line. She quarantined at home, but her husband caught the coronavirus and died. The worker and her daughters sued the employer for wrongful-death damages, including for loss of love and care.
The worker claimed her husband’s death resulted from her employer’s failure to implement adequate safety measures, such as social distancing on the packing line.
The family sued in local court, but the employer filed for summary judgment on the grounds that the case belonged in the workers’ compensation system and not in civil court. However, the California Court of Appeal in January 2022 held that the derivative injury doctrine does not bar third-party COVID-19 related claims.
It found that an employer that has not taken adequate measures to prevent the spread of COVID in the workplace may be held liable if an employee contracts the coronavirus at work and spreads it to a third party, such as a spouse, if the third party suffers a resulting injury. The court did not resolve the extent to which the employer’s duty of care reaches, however.
The State Supreme Court declined to hear the case, meaning the case will proceed to trial.
The plaintiffs will still have to prove that See’s Candies owed a duty of care to non-employees infected with COVID-19 due to an employee contracting the virus at work.
Both of these cases illustrate the ongoing case law concerning take-home COVID-19 lawsuits and the threat they pose to employers.
If the plaintiffs are successful, employers who have had lax COVID-19 prevention policies could find themselves in the legal crosshairs.
What can you do? Be sure to protect your employees from COVID-19 as best you can. Remember VMA members get a 25% discount with Prudential Overall Supply on personal protection items, cleaning supplies, disinfectants, sanitizers, etc. Contact firstname.lastname@example.org for more info.