As the pandemic has continued to wear on many people, multiple lawsuits have been filed over various issues such as pay, compensation and business interruption. But one type of lawsuit in California in particular has many employers wonder if they might end up creating an endless stream of COVID related lawsuits from a new term “Take Home Liability.”
Take home liability is the idea that an employer is liable for anything that happens to their employees’ families based on what happened at their business, the idea that their employees, “take home” their illness. “Take-home claims are well-established in other areas of law, particularly in asbestos litigation. Courts have generally rejected the argument that employers have a duty of care only to their employees and not to an employee’s family. The prevailing rule in most jurisdictions is that an employer may be liable for secondary exposures if it was reasonably foreseeable that its employees might carry a disease-causing agent home and expose others sufficiently to cause illness.”(1)
In California, one case has an opportunity to increase the number of employer liability lawsuits beyond workers compensation. In December, an appeals court judge has allowed a wrongful death lawsuit to proceed, even though the victim was not employed by the company. The plaintiff is suing See’s Candies, a subsidiary of Berkshire Hathaway for what it deemed as “Take Home” COVID. She was working next to sick coworkers, in April 2020, during the early days of the pandemic and inevitably got infected. When she brought it home, it infected her husband who subsequently died from it. She has since sued the company for failing to have proper safeguards in place to prevent the spread of the virus and that they were no sent home at the first sign of infection
The ruling is the first by an appeals court to allow a novel "take-home" COVID-19 lawsuit, which seeks damages from a business over allegations of violating safety protocols and setting off a chain of infections beyond the company's premises.
Employment related COVID Liability suits have tended to focus on several key areas including:
- Negligence in maintaining a safe working environment.
- Forced compliance with the various mandates, including vaccinations, masks and social distancing
- Hostile working environment in enforcing said mandates
- Illness, disability or death sustained as a result of exposure to COVID in the workplace
Many states have protections for employers relating to “Take Home” liability, except in the case of gross negligence, however, a few states including California do not.
This is not the first lawsuit of this type to be brought. There have been at least 23 take-home COVID-19 lawsuits across the United States, which are all in the early stages. Defendants include Amazon.com Inc , Walmart Inc (WMT.N), Royal Caribbean Cruises Ltd (RCL.N), Conagra Brands Inc (CAG.N) and Pilgrim's Pride, an affiliate of meat producer JBS SA (JBSS3.SA). (2) They allege the same thing in that workers weren’t screened, and symptomatic carriers were kept in the same areas as those not sick which were then brought home infecting their family members. They are seeking damages based on people being put on ventilators or dying from the disease.
The problem is that this ruling could open other lawsuits for people to sue a company that they had no direct contact with. Like the plaintiff, someone could inadvertently get the virus, not have severe symptoms, bring it home to their families and if someone dies, does that mean they are responsible? Because of the amount of cases that could result from being exposed from COVID, thirty states have passed laws that limit the liability from at work infection cases, unless there is proven gross negligence. California is not one of the states that has not. This ruling opens the door for more liability or in the words of business owners, “a never-ending chain" of liability.
With COVID not ending any time soon, lawsuits will continue to mount, and liability associated with them will continue to be a workplace related issue. Keep reviewing your protocols to know how to keep your employees safe.
