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Another Potential Mine Field for U.S. Employers Arising out of COVID-19 Infections

Another Potential Mine Field for U.S. Employers Arising out of COVID-19 Infections

Brian Antweil

Senior Counsel
Recently, Fidelity Brokerage Services published an article regarding “take-home” lawsuits arising out of COVID-19 Infections.
Take home lawsuits are claims that arise where a family member contracts COVID-19 from another family member who themselves contracted the disease at their workplace. These lawsuits find their genesis in asbestos litigation. In those cases, because the secondary exposure happened to someone not working for the employer of the working family member, there are no liability caps through workers compensation protections. Thus, when and if these types of cases are filed, it can create significant exposure for companies to costly pain and suffering damages.
As the Fidelity article points out, “between 7% and 9% of the roughly 200,000 U.S. COVID-19 deaths so far are believed to stem from take home infections. . . “
So where will this go? It would seem that a threshold issue in this case will be whether the company owes a duty to the sick family member. In asbestos litigation the company exposes the employee to asbestos as part of their job. In this scenario the exposure is to an illness that is transmitted from another human, often unknowingly if symptoms are not present. There is no way to confirm COVID-19 is present or to eliminate the risk. Another issue is whether a failure to adopt reasonable safety measures actually caused the illness. The sick family member will have to prove a link to the exposed worker and the business’s failure to adopt safety measures. Do the company protocols meet the standards set forth by the experts?  Moreover, it’s one thing to have the protocols but another to prove compliance and enforcement. Finally, there could be a lot of other intervening and superseding causes that are the cause of the infection.
Time will tell how the courts deal with the duty and causation issues but these cases could create significant legal exposure without proper protections in place.  It will be interesting to see how juries feel about how employers are addressing the safety issue juxtaposed against their attitudes regarding individual responsibility.
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