Throughout the pandemic, it was all too common for an employee to be infected at work and then spread the infection at home to their family members. This gave rise, of course, to litigation—specifically, the “take-home” COVID-19 claim. While the employee’s own illness is covered by workers’ compensation if it arose out of and in the course of employment, it has been unclear whether their family members can bring their own claims against the employer based on their own illness. Recent cases, building upon a body of case law arising in the context of take-home asbestos claims, have begun to provide some guidance on the viability of take-home COVID-19 claims.
In this article, we first discuss the impact of COVID-19 business liability shield laws on such claims. We then turn to the question of whether the derivative injury doctrine under state workers’ compensation laws serves to bar take-home claims. Assuming that such claims are not prohibited under these two mechanisms, we then discuss the possibility that employers may owe a duty of care to employees’ family members. Finally, we explore whether exceptions to any existing duty of care arising out of public policy considerations may apply.
To their great relief, companies in many states may be legally protected against take-home COVID-19 claims. During the pandemic, 30 states rushed to enact laws or issue executive orders to shield businesses from liability for personal injury, death, or other loss due to exposure to COVID-19, whether that of customers, visitors, or others. Depending on the scope of the specific business liability shield, this could include take-home claims.
A wide variation in the shields exists, starting with their period of effectiveness. Some have or had an expiration date. For example, Alabama’s business liability shield terminated one year after the end of the state’s COVID-19 public health emergency, which occurred on October 31, 2021—so its shield expired on October 31, 2022. Sixteen other states’ shields have also ended. Yet others have set shield termination dates in the future, most in the next few months or so, although Montana has set this date quite far into the future—January 1, 2031. On the other hand, a number of states’ business liability shields continue on indefinitely. Notably, under most, if not all, of the date-limited business shield laws, immunity will likely continue against claims that accrued during the period in which the shield was in effect, even beyond the termination date.
As to the scope of protection, some states, like Alaska, shield companies only against claims by customers, or from claims arising from exposure to COVID-19 on the business premises. These laws will not protect employers against take-home claims. However, other states’ laws are less specific and provide generic protection against claims for injury, death, or loss generally related to COVID-19. This language is almost certainly broad enough to encompass take-home claims.
The actions required to trigger the business liability shield also differ widely from state to state. In some states, the company must have reasonably attempted to comply with applicable COVID-19–related laws, regulations, executive orders, or public health guidance. In others, like Arizona, the company needs only to act in good faith to protect the individual in question—without mention of laws or guidance. In several states, the company need not make even a minimal good faith effort to comply with controlling standards or take protective measures for the immunity to apply.
This immunity is not absolute; the vast majority of state business liability shield laws provide an express exception to immunity where the business engaged in certain wrongdoing, including grossly negligent, wanton, reckless, willful, or intentional misconduct. This means that the shield laws will not necessarily bar take-home claims where the family member can establish such wrongdoing.
In those states where COVID-19 shield laws do not or no longer exist, or where an exception applies, companies may argue that workers’ compensation—and, more specifically, its derivative injury doctrine—serves as a bar to such claims.
In every state, an employee’s exclusive remedy for workplace injuries or illnesses—including COVID-19—is through the workers’ compensation system. As the Supreme Court of California explained in its recent take-home COVID-19 case, Kuciemba v. Victory Woodworks, Inc., a state’s workers’ compensation law establishes a “compensation bargain” under which an employer assumes liability for workplace injuries and illnesses in exchange for limitations on that liability, while an employee receives guaranteed payments in exchange for forgoing additional tort claims. This bar on civil actions arising from an employee’s illness or injury has been extended to third-party claims under the derivative injury doctrine. This doctrine provides that workers’ compensation serves as the exclusive remedy for third-party claims that are “collateral to or derivative of” the employee’s work-related illness or injury.
But what is meant by “derivative”? The employer community argues that it means any situation in which there is a causal link between the employee’s injury and that of the third party. In fact, this is the position taken in the amici curiae brief in Kuciemba filed by a number of major employer associations, including the U.S. Chamber of Commerce, the National Federation of Independent Business, and the National Association of Manufacturers.
In Kuciemba, which involved the claims of an employee’s wife against the husband’s employer for take-home COVID-19, the U.S. Court of Appeals for the Ninth Circuit asked the Supreme Court of California to answer two questions regarding the scope of an employer’s liability when an employee’s spouse contracts COVID-19:
(1) If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, does the California Workers’ Compensation Act . . . bar the spouse’s negligence claim against the employer? (2) Does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members?
As to the first question, the employer organizations argued in their amici curiae brief that “causation is an element of every negligence claim, and the employee’s workplace infection is an essential causal link in every ‘take home’ COVID-19 case.” Because the wife’s injury “necessarily” implicated the employee’s injury or illness, the organizations vigorously asserted that her claims fell “squarely” within the derivative injury doctrine.
Some courts might agree. For example, the U.S. District Court for the Eastern District of New York summarily found the state workers’ compensation law to bar the claims of household members in Palmer v. Amazon.com, Inc. In that case, several employees and their household members sued Amazon for breach of the duty to provide a safe workplace, among other things. Without discussing the derivative injury doctrine, but relying on the broad coverage of the workers’ compensation law, the Palmer court dismissed the breach of duty claim by all plaintiffs—including the household members—on the grounds that it was subject to the exclusive remedy of workers’ compensation.
Other courts, however, have rejected the argument that workers’ compensation and its derivative injury doctrine bar take-home COVID-19 claims by family members, frankly with a far more comprehensive and detailed analysis of the issue than the Palmer court provided. For example, in See’s Candies, Inc. v. Superior Court,the wife contracted COVID-19, allegedly because of her employer’s inadequate safety measures, and then infected her husband, who subsequently died. The employer argued that the derivative injury doctrine barred the family’s wrongful death action.
The California lower appellate court rejected a simple causal link approach, and instead held that the derivative injury doctrine applies only when it is “legally impossible to state a cause of action . . . without alleging a disabling or lethal injury to another person.” The See’s Candies court further clarified that the derivative injury doctrine applies to claims that are “logically” or “legally” dependent on the employee’s injury or illness, which is not the same as “causal” dependence. The court also pointed out that derivative claims typically involve economic or intangible losses to the third party resulting from the employee’s injury or illness. But, according to See’s Candies, the doctrine does not apply where the claims arise from the third party’s “separate physical injuries,” even when the employee’s injury is part of the causal chain.In the end, the See’s Candies court found that the derivative injury doctrine did not serve to bar the husband’s claim.
The Supreme Court of California built upon this lower appellate court opinion in Kuciemba. The Kuciemba court found that “[a] plaintiff’s claim is barred as derivative only if the plaintiff is required to prove injury to the employee as at least part of a legal element of the plaintiff’s own cause of action.” The Kuciemba court distinguished between a case involving a loss of consortium, in which the employee’s spouse is required to prove a tortious injury to the employee as part of the spouse’s claim, and an injury to a fetus based on the mother’s inhalation of toxic fumes in the workplace. While the mother’s injury is a “but for” cause of injury to the child, it is not legally required to be proven as an element of the child’s own cause of action.
Like the child’s claim and pointing to See’s Candies, the Kuciemba court found that the employer’s and amici curiae’s reliance on the viral transmission as the “but for” cause of the wife’s injury was incorrect; her own negligence claim was not legally dependent on injuries suffered by her husband. The court rejected the contention that “a mere causal link” between the employee’s injury and the family member’s injury was enough to trigger the derivative injury doctrine. In the end, the court found that the derivative injury doctrine did not bar the wife’s take-home claim.
To support its decision, the Kuciemba court also referenced Estate of de Ruiz v. ConAgra Foods Packaged Foods, LLC (Ruiz I), which involved a similar spousal death from COVID-19. Like the Kuciemba court, the Wisconsin federal district court distinguished this situation from a loss of consortium claim. For the latter, the court observed that it made sense to apply the derivative injury doctrine because a wife could not legally state a cause of action without alleging injury to her employee-husband. Like Kuciemba, Ruiz I rejected the argument that the causal link alone was sufficient to trigger the derivative injury doctrine. Instead, the court found that the wife suffered an independent injury when she died from COVID-19; therefore, she could bring her own claim against the employer.
It would not be surprising if courts in other jurisdictions adopted a similar analysis to that announced in Kuciemba and Ruiz I with regard to whether the derivative injury doctrine bars claims by family members for their own injuries arising from the spread of an employee’s COVID-19 infection at home.
Assuming that a family member’s claims are not barred by COVID-19 shields or workers’ compensation, the next question is whether they have viable tort claims—primarily negligence—against the employer. Courts have looked to the existing body of case law on take-home asbestos claims for guidance.
Asbestos take-home cases. Similar to COVID-19, many workers were exposed in the workplace to asbestos, which was widely used in many industries throughout the United States until the 1970s. The asbestos fibers stuck to workers and the clothing they brought back to their homes. Unknowingly, these workers often exposed their children, who hugged them when they came through the door, and their wives, who often laundered their clothing. Unfortunately, some of these family members ended up contracting asbestosis or mesothelioma through this secondary exposure. These third-party family members subsequently filed lawsuits alleging that the employers negligently failed to protect them from take-home asbestos, even though they were not exposed at or near the workplace. The issue of third-party liability in these cases turns on whether the employer owed these family members a duty of care.
Several states permit third-party negligence claims and have held that a duty of care exists or potentially exists from the employer to the third party. Generally, courts that allow third-party negligence claims look at whether a duty of care is owed based on the foreseeability of the risk. For example, in Kesner v. Superior Court, the Supreme Court of California looked at several factors to determine whether a duty of care existed to third parties who contracted asbestosis due to secondary exposure. Kesner noted that foreseeability is the most important factor in that determination, and it ultimately concluded that it was foreseeable that people who work with or around asbestos may carry it home with them and expose those in their households.
Similarly, in Schwartz v. Accuratus Corp., the Supreme Court of New Jersey held that a company could be held liable for asbestos exposure to third parties, including the worker’s spouse. The court noted that once the risk was foreseeable, “fairness, justness, and predictability” required recognition of a duty of care. To evaluate foreseeability, the court looked at a number of factors, including the relationship of the parties; the nature of the attendant risk, including the danger of the toxin at issue and how easily the toxin is transmitted and causes injury; the opportunity and ability to exercise care; and the public interest in the proposed solution. The court ultimately concluded that the company owed a duty of care to the worker’s spouse. The court also held that the company could owe a duty of care to other household members, but such a determination would require a case-by-case analysis.
In contrast, several state courts and legislatures have reached the opposite conclusion, finding that companies have no liability for third-party asbestos exposure. In the same vein as the COVID-19 shield laws, both Kansas and Ohio have enacted legislation explicitly barring companies’ third-party liability for asbestos exposure. Additionally, several courts have found that no duty of care exists to third-party family members. The rationale for these decisions is based on either a lack of foreseeability or a lack of a significant or “special” relationship between the exposed family member and the employer.
For example, in Gillen v. Boeing Co., the U.S. District Court for the Eastern District of Pennsylvania reviewed five factors in finding that no duty of care existed: (1) the relationship between the parties, (2) the social utility of the actor’s conduct, (3) the nature of the risk imposed and foreseeability of the harm incurred, (4) the consequences of imposing a duty upon the actor, and (5) the overall public interest in the proposed solution. As to the foreseeability factor, which was the most significant, the court held that there was no way for Boeing to know that Mr. Gillen took his clothes home to be washed by his wife, who would subsequently be exposed to asbestos.
Similarly, in Quiroz v. Alcoa Inc., the court found that no duty of care was owed to the public for secondary asbestos exposure. However, instead of looking at foreseeability, the Supreme Court of Arizona looked at whether public policy created a duty of care based on a special relationship. Quiroz reasoned that no support exists for the notion that a company owes a general duty to the public for an off-premises injury.
In those jurisdictions where courts have recognized a duty of care to third parties in the context of asbestos exposure, family members who contracted COVID-19 from employees have pointed to those cases to support their take-home claims against the employer.
COVID-19 cases. At this time, several opinions have been issued addressing whether family members can sustain a negligence claim against the employer for take-home COVID-19, and these opinions provide us with some guidance. As noted above, in the recently issued Kuciemba decision, the Ninth Circuit asked the Supreme Court of California to answer the specific question “Does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members?”
In California, unlike many other states, there is a general duty of care set forth by statute in Civil Code section 1714. The employer and amici curiae argued that the statutory duty of care applies only if a special relationship exists between the employer and the family member. The Kuciemba court rejected this argument, finding that no special relationship is required, although acknowledging that there are limits to the extent of the general duty. Kuciemba explained that California law imposes a general duty of care only when the entity is the one who has created a risk of harm or made it worse. But the law does not require an entity to help protect others from that harm. According to the court, in rejecting a strict causation approach, “[t]he proper question . . . is . . . whether the defendant’s ‘entire conduct created a risk of harm’ to the plaintiff.” Here, the court found viable the claim that the employer violated its obligation to exercise due care so as to avoid creating an unreasonable risk of harm to others, including beyond the workplace. More specifically, citing the Kesner case above with approval, the court held that employers have a statutory duty of care to prevent the spread of COVID-19 to employees and their household members.
The Kuciemba court also considered and rejected several other arguments from the business community as to why the duty of care should not apply. Amicus curiae Construction Employers’ Association (CEA) argued that an employer cannot create a risk of COVID-19 as the virus is preexisting and does not arise from the employer’s property or operations. The court, however, noted that the employer allegedly created a risk of infection by violating a county health order. The CEA also argued that any risk could not be unreasonable because it was simply part of business operations. The court, however, noted that the employer did not simply continue operations but allegedly engaged in affirmative misconduct. The court also rejected the argument that the risk must be associated with a particular hazardous product or that the duty of care is limited to business-specific activities.
Ruiz I also found that a duty of care applied with regard to the take-home claims of the employee’s wife. Similar to other states, Wisconsin recognizes a broad general duty of care, which is established whenever it is foreseeable that a person might cause harm to someone else. No special relationship is required; the duty of care applies even if the actor does not know the nature of the harm or the identity of the harmed person. This general duty is not without limits, however; it is restricted to what is reasonable under the circumstances. The Ruiz I court determined that it was foreseeable that ConAgra’s failure to implement adequate safety measures might cause harm—not just to employees but also to others. And that meant ConAgra had a duty to use reasonable care to prevent the spread of COVID-19 to others.
Estate of Madden v. Southwest Airlines, Co. involved a case in which a flight attendant contracted COVID-19 due to the employer’s alleged failure to implement reasonable safety measures, and her husband subsequently died after being infected by her. Like Wisconsin, Maryland has no statutory duty of care. Instead, Maryland courts have applied two different approaches to determining whether such a duty exists under state common law, and the Maryland federal district court applied both.
The first approach is a general rule that “a private person is under no special duty to protect another from the criminal [or tortious] acts by a third person.” However, there are three exceptions to this “no duty” rule: (1) if the defendant has control over the conduct of the third party, (2) if there is a special relationship between the defendant and the third party, and (3) if a statute or ordinance has been enacted to protect a specific class of people. The Madden court found that none of the exceptions applied here as Southwest had no control over the flight attendant outside of work, there was no contention of a special relationship between Southwest and the flight attendant or her husband, and no statute or ordinance applied. Therefore, under this approach, Southwest owed no duty of care to the husband.
The Madden court then turned to the other test under Maryland law for determining if there is a duty of care, which assesses seven factors:
(1) the foreseeability of harm to the plaintiff,
(2) the degree of certainty that the plaintiff suffered the injury,
(3) the closeness of the connection between the defendant’s conduct and the injury,
(4) the moral blame attached to the defendant’s conduct,
(5) the policy of preventing future harm,
(6) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise reasonable care with resulting liability for breach,
(7) and the availability, cost and prevalence of insurance for the risk involved.
In reviewing these seven factors, the Madden court first found that failing to implement preventive strategies would foreseeably increase the risk of harm to the employee and their family members. As to the degree of certainty of injury, the court determined that, based on the “ubiquitous infection vectors,” there was substantial uncertainty that Southwest’s conduct would cause injury, which weighed against a finding of duty. The third factor, the closeness between Southwest’s conduct and the injury—which the court also characterized as “proximate cause”—weighed in favor of a finding of duty as the likelihood that the attendant would become ill during an unsafe training and infect her husband was foreseeable. The court found Southwest “morally blameworthy” for failing to provide adequate safety precautions, which argued in favor of imposing a duty. The goal of preventing future harm also weighed in favor of finding a duty. The court found that there was insufficient information to be able to assess the seventh factor on the availability, cost, and prevalence of insurance for the risk.
The most important factor in this analysis, however, was the sixth factor—the burden on Southwest and the consequences of imposing a duty. The Madden court found this to outweigh all of the other factors that supported finding a duty. Although the impact on Southwest was negligible, in the court’s view, the “broader societal consequences” would be severe. Imposing such a duty would “‘open[] the floodgates’ to expansive new classes of third-party plaintiffs.” The court noted that Maryland courts have previously rejected take-home claims by family members in the context of asbestos and HIV because of this concern. In the end, the Madden court refused to impose a duty of care on Southwest with regard to the husband’s take-home COVID-19 claim.
A finding that an employer owes a duty of care to employees and their family members to prevent the spread of COVID-19 may not end the analysis, however. As the Kuciemba court recognized, exceptions may apply when there are “compelling policy considerations.”
In California, courts apply a multifactor test, first set forth by the state’s supreme court in the 1968 case of Rowland v. Christian, to determine if an exception is justified. As the Kuciemba court explained, the analysis is conducted to determine whether, as a matter of policy, to apply an exception to an entire category of cases, and not just the individual case in question. Under this approach, the court reviews seven factors—in fact, the exact same factors utilized by the Madden court in determining if a duty exists. But in an example of how state courts view the same issue in slightly different ways, the Kuciemba court concluded that, in California, the Rowland analysis is not used to determine whether a duty exists—but only whether an exception to the duty applies. The Kuciemba court then assigned these factors to two groups—the first involving foreseeability/certainty and the second involving public policy concerns.
As to the foreseeability/certainty factors, the court held that these factors weighed in favor of finding no exception. The court first found that, like the employer’s knowledge of the dangers of asbestos in Kesner, the employer here had sufficient knowledge of the dangers of COVID-19. That meant it was foreseeable that the employer’s failure to take workplace precautions would result in the transmission of COVID-19 to employees’ households. As to the second factor, it noted that there was really no question that the spouse was injured. The third factor weighed only slightly in favor of recognizing the duty. The court agreed with the employer that, unlike Kesner where the source of infection—asbestos—was easily traceable, the connection between the wrongful conduct and the injury was “somewhat attenuated” due to the highly infectious and widespread nature of COVID-19.
With regard to the public policy factors, however, the Kuciemba court observed that “[a] duty of care will not be held to exist even as to foreseeable injuries . . . where the social utility of the activity concerned is so great, and avoidance of the injuries so burdensome to society, as to outweigh the compensatory and cost-internalization values of negligence liability.” With this principle in mind, the court then reviewed each of the policy factors. As to the question of moral blame, the court found that, like the employer in Kesner, the Kuciemba employer enjoyed a profit from its harmful actions (i.e., a cost savings in ignoring the protective measures), and there was a significant power differential between the employees and the employer, who had greater control over workplace precautions. On balance, this factor favored no exception. The next factor—prevention of future harm—was mixed or slightly in favor of an exception, given the possibility of exposure outside the workplace and the possible negative economic impact from additional liability on employers. As to the seventh factor—the cost of insurance—there was insufficient information to draw any conclusions as to its weight.
The most significant public policy factor according to the Kuciemba court, however, was the burden to the defendant and consequences to the community of imposing a duty of care. Here, the court distinguished this case from Kesner. The Kuciemba court concluded that the imposition of a duty to protect household members “has the potential to alter employers’ behavior in ways that are harmful to society.” Specifically, the court found that the precautions could unduly slow the delivery of essential services to the public, while the costs of prevention could cause some essential providers to shut down.
The employees argued for a duty of care similar to Kesner and other asbestos cases. But the court rejected the argument, observing that the danger of asbestos to family members requires sustained contact with employee clothing, unlike the highly transmissible COVID-19 virus. In addition, the pool of defendants using asbestos in their business is quite small compared with the potential pool of employers impacted by COVID-19. The court further noted that the “potential litigation explosion . . . would place significant burdens on the judicial system and, ultimately, the community.” These considerations weigh against imposing a duty of care.
Ultimately, the Kuciemba court noted that some factors favored a finding of a duty of care, while others did not. It further explained that the assessment is not based on the number of factors for and against—rather, a single factor could be so weighty as to tip the balance in its direction. In this case, “the significant and unpredictable burden that recognizing a duty of care would impose on California businesses, the court system, and the community at large counsels in favor of an exception” to the statutory duty of care.
In reaching this conclusion, the Kuciemba court cited three cases from other jurisdictions that similarly refused to impose a duty of care in the context of take-home claims.
The first was the Madden case discussed above. As previously noted, Madden applied the same seven-factor analysis as the Rowland analysis, although in the context of determining whether a duty exists rather than whether an exception to that duty applies. Yet the result was the same. While the Madden court interpreted some of the factors differently than the Kuciemba court, it ultimately and similarly found the factor of the broader societal concerns regarding a “floodgate” of litigation to preclude the imposition of a duty of care on the employer as to take-home COVID-19 claims.
Ruiz v. ConAgra Foods Packaged Foods LLC (Ruiz II) was the second case cited.Following Ruiz I, which dealt with the derivative injury doctrine and found a duty of care as to the employee’s family member, the Wisconsin federal district court issued another opinion focusing on whether state public policy would nonetheless preclude recovery by the family member. The public policy analysis under Wisconsin law utilizes a multifactor test with the following six considerations:
(1) the injury is too remote from the negligence; (2) the injury is too wholly out of proportion to the tortfeasor’s culpability; (3) in retrospect it appears too highly extraordinary that the negligence should have resulted in the harm; (4) allowing recovery would place too unreasonable a burden on the tortfeasor; (5) allowing recovery would be too likely to open the way for fraudulent claims; [or] (6) allowing recovery would enter a field that has no sensible or just stopping point.
The Ruiz II court found the fourth and sixth factors to be determinative. Specifically, the court noted that although the employer knew that a specific employee was contagious, the employer did not create the virus and that simply being aware of this omnipresent virus does not support a duty of care to third parties. The court also found that the employer had no ability to control the employee’s actions or the virus’s impact outside the workplace. Because so much was outside the employer’s control, state law would not impose liability for take-home claims.
Ruiz II also looked to Madden and its concern about opening the “floodgates” to litigation. The court noted the lack of any “principled stopping point” for the breadth of potential liability—under the plaintiff’s theory of liability, anyone who was exposed to any employee would then have a negligence claim. As a result, Ruiz II held that, as a matter of public policy, there would be no liability for breach of the duty of care in these circumstances.
Notably, in reaching its decision, Ruiz II reviewed asbestos cases from multiple jurisdictions, noting that in some the duty of care was extended to family members, while in others it was not. Ruiz II noted three critical distinctions between the current COVID-19 situation and the asbestos cases: (1) employers created the danger by deliberately exposing their employees to asbestos as part of their business operations, while ConAgra did not create or profit from COVID-19; (2) employers knew of the dangers of asbestos since the 1930s and had decades to adjust their practices, whereas COVID-19 was a “novelty” in April 2020, when the ConAgra employee became ill; and (3) mesothelioma requires high levels of exposure to asbestos, compared to COVID-19’s highly infectious nature.
The third and final case cited in Kuciemba was Iniguez v. Aurora Packing Co., which also involved the death of an employee’s family member. Like the other courts, the Illinois Circuit Court determined that policy concerns may preclude the imposition of a duty of care on employers as to third parties. However, it found the source of public policy in the state workers’ compensation law, which limits employer liability for acts of negligence. The court concluded that extending liability “to an incalculable class of potential plaintiffs would completely disembowel the policy considerations” of this law.
Although many take-home COVID-19 cases have yet to make their way through the various federal and state courts, the few that have been decided with extensive analysis have refused to impose a duty of care on employers as to the family members of employees for their own injuries deriving from the employee’s workplace infection. Moreover, two of these opinions have issued from courts in jurisdictions that are generally considered to be progressive and worker-friendly—California and, more recently, Maryland. Other jurisdictions likely will follow in their footsteps.
