When we think about the people hardest hit by the coronavirus pandemic, we immediately think of those with preexisting health conditions and the elderly. However, “essential workers” have borne a disproportionate share of this burden. I am referring to those who work in emergency services, healthcare, agriculture, food service, public utilities, energy, transportation, and other sectors. These workers are generally underpaid, unable to work from home, and inadequately protected against workplace hazards, placing them among those hardest hit by the pandemic. The highly contagious nature of SARS-CoV-2, including the infectiousness of asymptomatic and presymptomatic individuals, means that the family members of infected workers are also at risk. According to an estimate in the U.S., between 7% and 9% of the first 200,000 COVID-19 deaths occurred when an individual was infected at work and transmitted the virus to a family member.
Employees who become ill due to occupational exposure are generally entitled to workers’ compensation benefits, which vary by U.S. state law. If the illness is an “ordinary disease of life,” the employee must prove that it was caused by exposure in the workplace, including conditions resulting from relatively sudden and unexpected exposure to germs. To ease the burden of proof for employees who contract COVID-19 at work, state laws generally establish a relative presumption that a healthcare worker’s or first responder’s COVID-19 infection is the result of occupational exposure. Therefore, workers who become infected in the course of their work are eligible for workers’ compensation benefits if they can establish that their illness originated from their employment. However, family members who are subsequently infected by these workers are not eligible because they did not sustain injuries in the course of employment. Could they, however, seek civil liability in the general courts?
In the United States, the theory of “take-home civil liability” has been developed. Lawsuits filed by family members who become ill after their relative is exposed at work are known as “take-home civil liability” cases. This is a new theory designed to provide a remedy for individuals who otherwise could not obtain compensation for their illness. Its most paradigmatic application has been in cases involving liability for asbestos exposure (asbestos cases). Employees who worked with asbestos in manufacturing, shipbuilding, the automotive industry, and other sectors took their asbestos-contaminated clothing home, where their spouses, children, and other family members were exposed while doing laundry or in other ways, such as by wearing the contaminated clothing while playing with their children. “Take-home liability” was successfully developed to provide a remedy for the deaths and serious illnesses caused by this secondary exposure to asbestos in the workplace. The fact is that asbestosis and mesothelioma are serious respiratory diseases caused solely by exposure to asbestos, which makes it easier to prove causation, given that regulations recognizing the risk of asbestos exposure have been in place since 1972, requiring employers to provide protective clothing and changing rooms to prevent employees from taking home or washing their asbestos-contaminated clothing.
Across the 50 U.S. states, there is legislative variation regarding the admissibility of “take-home liability” claims. As of 2020, 16 states hold that employers have a duty to the victims’ family members—authorizing a negligence claim. In contrast, 13 states hold that no such duty exists because the harm is not foreseeable or there is no meaningful connection between the exposed family member and the employer. Two states have enacted legislation that expressly prohibits “take-home liability,” and the remaining 19 states have not yet addressed the issue.
Unlike asbestos exposure, strict product liability is not a viable legal theory in the U.S. for SARS-CoV-2 exposure among family members because the coronavirus is not a “product.” However, civil liability claims based on employer negligence are, in theory, viable for “take-home liability” in the context of the coronavirus pandemic. Strict liability applies only to abnormally dangerous activities involving a foreseeable and highly significant risk of harm, even when reasonable care is exercised and the activity is not of common practice. It is unlikely that U.S. courts will apply strict liability to COVID-19, even though it is a deadly and highly contagious disease. In a leading case, Doe v. Johnson, the plaintiff alleged that the defendant improperly transmitted HIV to her through consensual sexual intercourse. The judge held that there was no precedent for extending strict liability to this case. The risks of a sexually transmitted infection could be reduced by exercising reasonable care, and sexual activity is not an inherently dangerous activity. Similar reasoning likely applies in a COVID-19 case.
Therefore, in a civil liability claim regarding household exposure to COVID-19 based on employer negligence, the employee’s family members must prove that the defendant breached a duty of care toward them. The four traditional elements of civil liability in various common law jurisdictions must be assessed: duty, breach, causation, and damage.
a) Duty—The essence of a negligence-based claim is that the defendant breached a duty to the plaintiff by failing to exercise reasonable care under the circumstances. In “take-home liability” cases, the employer is accused of breaching a duty toward an employee’s family member—an individual with no employment relationship with the employer, in a setting outside the workplace, involving a person whose identity or even existence was unknown to the defendant. Thus, the central issue is whether a family member of an employee is a “foreseeable plaintiff” toward whom the employer bears a legal duty. In the precedent Kesner v. Superior Court, the uncle of Johnny Blaine Kesner, Jr., George Kesner, an employee of Pneumo Abex, LLC, was exposed to high levels of asbestos in the course of his work. Johnny Kesner stayed at his uncle’s home about three days a week for six years and alleged that he was exposed to asbestos through dust on his uncle’s clothing, and that this exposure caused him to develop peritoneal mesothelioma, from which he died. The California Supreme Court held that employers have a duty to prevent secondary exposure to asbestos by their employees’ family members, and that exposure carried home via employees’ bodies and clothing was foreseeable.
In the context of COVID-19, the plaintiff would have to prove that inadequate workplace protections and the transmissibility of SARS-CoV-2 would make it foreseeable that employees exposed at work would infect one or more of their family members. Since SARS-CoV-2 could spread to numerous other potential plaintiffs in addition to family members, the defendants would likely raise the possibility of unlimited liability as a reason to dismiss the “take-home liability” claim. In the aforementioned Kesner case, the court specifically addressed this issue by holding that an employer’s duty extends only to a worker’s family members, thereby limiting potential plaintiffs to an identifiable category of people who, as a class, are more likely to have suffered a legitimate and compensable injury.
b) Breach—the next step is to determine whether the defendant breached the applicable standard of care. In the United States, OSHA (Occupational Safety and Health Administration) regulations are used as evidence of employers’ compliance with standards of care, ensuring that the workplace is free from recognized serious hazards, including by providing the necessary personal protective equipment. OSHA standards are admissible even when the plaintiff was not an employee—such as a visitor to the workplace or a safety inspector. However, since there are no federal OSHA regulations enacted specifically for COVID-19, the admissibility of a standard in compensation litigation depends on the state law applicable to negligence cases. For example, in 33 states, an employer’s failure to comply with an applicable OSHA standard constitutes “some evidence” of negligence, with its probative effect ranging from an inference of negligence, prima facie negligence, or creating a rebuttable presumption of negligence. The effect of negligence per se is to establish a breach of a relevant duty; however, the plaintiff is still required to prove causation and damages, so the defendant will have the opportunity to raise other defenses.
c) Causation—For liability to be imposed, the defendant’s negligent conduct must be the factual cause of the damages suffered by the plaintiff. In cases of exposure due to “take-home liability,” there are two parts to the causal link. First, the employer’s negligence must be the cause of the employee’s infection. Since SARS-CoV-2 is so prevalent in the community, it can be argued that the employee may have been infected in other ways, such as in public places, on public transportation, or at public or private gatherings. Second, the family member’s infection must have been caused by exposure to the infected employee. Here, again, the family member may also have been infected through exposure to other individuals. The fact is that establishing causation is more problematic for COVID-19 than for asbestos exposure, because exposure to the coronavirus is more common and occurs in more settings than exposure to asbestos.
The first “take-home liability” lawsuit, filed in August 2020 by the daughter of Esperanza Ugalde of Illinois, stemmed from the allegation that Ugalde died of COVID-19 that her father contracted at the Aurora Packing Co. meat-processing plant. A second lawsuit, also in Illinois, was filed by Miriam Alvarez Reynoso, who contracted COVID-19 from her husband, a parts assembler, and suffered severe multi-organ damage while caring for him. The company’s owner stated that, even before the COVID-19 pandemic, employees routinely wore masks because of dust and also gloves, and that the employee fell ill before anyone else. Arguments such as these demonstrate that establishing a causal chain will be the biggest obstacle to obtaining compensation. Thus, the question arises: will plaintiffs have to show that the companies failed to implement safety measures—which led the worker to become ill and infect a family member—and that the worker took precautions to avoid becoming ill from other sources?
Common law experience indicates that the plaintiff will not be required to prove the exact sequence of exposures when the defendant’s negligence consists of a violation of a safety regulation. In such circumstances, the court is unlikely to ignore the fact that the harm could have been prevented had the defendant exercised due care. Public policy considerations also come into play, including moral responsibility, prevention of future harm, and the availability of insurance.
d) Damage—The plaintiff must prove that the defendant’s negligence resulted in a legally recognized damage. In cases of “take-home liability” involving asbestos, courts have applied the traditional principles of civil liability, although many appellate cases have been decided based on the recognition that these are interests deserving of protection by the legal system. However, in the context of COVID-19, cases would almost certainly be filed by family members of employees who became seriously ill or by their heirs in the event of death. Successful plaintiffs may include among the compensable damages loss of income, medical expenses, and compensation for pain and suffering. Punitive damages are exceptionally admissible if the employer’s conduct was intentional, arbitrary, or demonstrated a clear disregard for the rights of employees or their family members.
The fact is that inadequately protected and underpaid essential workers and their families are suffering excessively from the pandemic. Their struggle to survive—both medically and financially—is often overlooked due to the political focus of the debate over the need for public health measures versus the defense of economic and personal freedoms. Nevertheless, the deterrent effect of potential civil liability on employers regarding their obligations to their workers is fundamental. If the concern over the possibility of damages claims from the deceased or sick family members of their workers motivates some recalcitrant employers to improve working conditions, civil liability actions based on “take-home liability” will be responsible for saving lives.