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Reduce the risk of ‘take-home COVID-19’ litigation

A number of “take home COVID-19” lawsuits have been filed across the country. These suits involve cases in which employees are believed to have caught COVID-19 at work and then brought it home to a family member who was adversely affected.

A number of states have put protections in place to limit employer liability, except in cases of gross negligence or intentional contact. An article from Reuters estimates that 30 states may have such protections in place. This number may be inflated however, considering the level of requirements and compliance businesses have to show in order to be shielded from liability.

California cases

Cases are underway in California that could establish a costly precedent for state employers and potentially influence legal judgments nationwide. In the case of Kuciemba v. Victory Woodworks, the plaintiff, Corby Kuciemba, was allegedly exposed to COVID-19 at work and then brought it home to his wife who was subsequently sickened and hospitalized for over a month.

The plaintiff alleges Victory transferred employees from one job site to another, knowing they’d been exposed to COVID-19. He claims the company failed to follow safety procedures under the San Francisco health order and that he was made to work in close contact with exposed workers.

A federal appellate court in California has asked the California Supreme Court to weigh in on two issues of state law. First, was Kuciemba’s wife’s illness derivative of Kuciemba’s work-related injury and subject to the exclusive jurisdiction of the Worker’s Compensation Act (WCA)? Further, if WCA is not the exclusive remedy, did Victory own a duty to employee households to prevent the spread?

Meanwhile, in Ek v. See’s Candies (in which the plaintiff’s spouse died of COVID-19) another California court has ruled that the transmission of COVID-19 was not a “derivative injury,” thus allowing a COVID-19 negligence case to move forward. The California Supreme Court has refused to review that ruling.

Reducing risk

While cases play out, employers would be wise to take a risk management approach with an eye toward reducing take-home COVID-19 disputes. Recommended steps include:

  • Staying current with CDC guidance, even when such guidance is stricter than one’s own state mandates
  • Following OSHA’s non-mandatory recommendations
  • Educating employees and urging them to seek care if symptomatic
  • Notifying employees of a confirmed COVID-19 case in the workplace
  • Checking in with sick employees and otherwise demonstrating an ethic of care

The more of a good faith effort an employer makes to reduce the spread of COVID-19, the better chance an employer will have to successfully defend against litigation or avoid it altogether.