Hostname: page-component-cd9895bd7-gxg78 Total loading time: 0 Render date: 2024-12-25T07:54:13.014Z Has data issue: false hasContentIssue false
  • English
  • Français

Employer Liability for “Take-Home” COVID-19

Published online by Cambridge University Press:  21 April 2021

Mark A. Rothstein  and
Julia Irzyk
Get access Rights & Permissions [Opens in a new window]

Abstract

Workplace exposure to SARS-CoV-2 has sickened workers and, subsequently, their family members. Family members might be able to recover from the employer in a negligence action using “take-home” liability theory.

Keywords

COVID-19Employer LiabilityNegligenceOSHAWorkers’ Compensation
Type
Columns: Currents in Contemporary Bioethics
Information
Journal of Law, Medicine & Ethics , Volume 49 , Issue 1: Public Sector and Non-Profit Contributions to Drug Development: Historical Scope, Opportunities, and Challenges , Spring 2021 , pp. 126 - 131
Copyright
© 2021 The Author(s)

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

About This Column

Mark A. Rothstein serves as the section editor for Currents in Contemporary Ethics. Professor Rothstein is the Herbert F. Boehl Chair of Law and Medicine and the Director of the Institute for Bioethics, Health Policy and Law at the University of Louisville School of Medicine in Kentucky. ([email protected])

References

Bagenstose, K. and Axon, R., “COVID-19 deaths go uninvestigated as OSHA takes a hands-off approach to meatpacking plants,” MidWest Center for Investigative Reporting, January 12, 2021, available at ≤https://investigatemidwest.org/2021/01/12/covid-19-deaths-go-uninvestigated-as-osha-takes-a-hands-off-approach-to-meatpacking-plants/> (last visited February 17, 2021.Google Scholar
Centers for Disease Control and Prevention, CDC COVID Data Tracker, available at <https://covid.cdc.gov/covid-data-tracker/#health-care-personnel> (last visited February 21, 2021).+(last+visited+February+21,+2021).>Google Scholar
Gandhi, M., Yokoe, D.S., and Havir, D.V., “Asymptomatic Transmission, the Achilles’Heel of Current Strategies to Control Covid-19,” New England Journal of Medicine 382, no. 22 (2020): 2158–2160.CrossRefGoogle Scholar
Slifka, M.K. and Gao, L., “Is Presymp-tomatic Spread a Major Contributor to COVID-19 Transmission?” Nature Medicine 26 (2020): 1531–1533.CrossRefGoogle Scholar
Selden, T.M. and Berdahl, T.A., “Risk of Severe COVID-19 Among Workers and Their Household Members,” JAMA Internal Medicine, published online Nov. 9, 2020, doi:10.1001/jamainternmed.2020.6249.CrossRefGoogle Scholar
Hals, T., “‘take Home’Lawsuits over COVID Infections Could Be Costly for U.S. Employers,” Reuters, available at <http://www.reuters.com/article/idUSL1N2G61EX> (last visited Oct. 14, 2020).+(last+visited+Oct.+14,+2020).>Google Scholar
“In nearly every jurisdiction, either by statute or case law, an exception to the exclusivity rule is recognized for an employer’s willful or intentional acts.” Rothstein, M.A., Occupational Safety and Health Law (Eagan, MN: Thomson Reuters, 2020): 765. The states differ as to whether a specific intent to injure or a lesser standard is used for determining whether the exception applies. Id. at 765-769.Google Scholar
Hals, supra note 6.Google Scholar
Id.Google Scholar
The take-home theory also has been used for exposure to beryllium. See Schwartz v. Accuratus Corp., 2016 WL 3947572 (3d Cir. 2016) (holding that woman alleging exposure to beryllium from her boyfriend’s work clothes could proceed with products liability claim).Google Scholar
See Sattterfield v. Breeding Insulation Co., 266 S.W.3d 347, 353 (Tenn. 2008) (describing the factual bases for take-home exposure).Google Scholar
EWG Action Fund, “New Estimate Finds Asbestos Kills 12,000-15,000 Americans a Year,” (2015), available at >http://www.asbestosnation.org/new-estimate-finds-asbestos-kills-12000-15000-americans-a-year/> (last visited Oct. 15, 2020).http://www.asbestosnation.org/new-estimate-finds-asbestos-kills-12000-15000-americans-a-year/>+(last+visited+Oct.+15,+2020).>Google Scholar
Harris, E.J.A. et al., “Diagnosis of Asbestos-Related Lung Diseases,” Expert Review of Respiratory Medicine 13, no. 3 (2019): 241–249; A.W. Musk et al., “Asbestos-Related Diseases,” International Journal of Tuberculosis and Lung Disease 24, no. 6 (2020): 562-567.CrossRefGoogle ScholarPubMed
29 C.F.R. § 1910.1001(h) and (i).Google Scholar
See generally Geistfeld, M., Principles of Products Liability (St. Paul, MN: Foundation Press, 3d. ed., 2020).Google Scholar
Bobo v. Tennessee Valley Authority, 855 F.3d 1294 (11th Cir. 2017) (Ala. Law); Kesner v. Superior Court, 384 P.3d 283 (Cal. 2016); Ramsey v. Georgia Southern University Advanced Development Center, 189 A.3d 1255 (Del. 2018); Stegemoller v. AC & S, Inc., 767 N.E.2d 974 (Ind. 2002); Hernandez v. Huntington Ingalls, Inc., 2020 WL 2308630 (E.D. La. 2020); Schwartz v. Accuratus Corp., 139 A.3d 84 (N.J. 2016); Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008); Quisenberry v. Huntington Ingalls, Inc., 818 S.E.2d 805 (Va. 2018); Rochon v. Saberhagen Holdings, Inc., 2007 WL 2325214 (Wash. 2007); Heuvel v. Albany International Corp., 2014 WL 4654947 (Mo. Cir. Ct. 2014) (applying Wis. law).Google Scholar
Hoffman v. Ketchikan Pulp Co., 2019 WL 3937413 (Wash. Ct. App. 2019) (applying Alaska law); Edwards v. ABB, Inc., 2019 WL 1422990 (Ark. Cir. Ct. 2019); Mestas v. Air & Liquid Systems Corp., 2019 WL 1253683 (D. Colo. 2019); Reed v. 3M Co., 2015 WL 4380102 (Conn. Super. Ct. 2015); Heu-vel v. Albany International Corp., 2014 WL 4654947 (Mo. Cir. Ct. 2014); Nichols v. Allis Chalmers Product Liability Trust, 2018 WL 1900256 (R.I. Super. 2018). These cases include lower state court decisions, denials of motions to dismiss, and dispositions other than a definitive statement from the state’s highest court.Google Scholar
Martin v. Cincinnati Gas & Electric Co., 561 F.3d 439 (6th Cir. 2009) (applying Ky. law); Dube v. Pittsburgh Corning, 870 F.2d 790 (5th Cir. 1989) (applying Maine law); Carel v. Fibre-board Corp., 74 F.3d 1248 (10th Cir. 1996) (applying Okla. law); Gillen v. Boeing Co., 40 F. Supp.3d 534 (E.D. Pa. 2014); Exxon Mobil Corp. v. Altimore, 256 S.W.3d 415 (Tex. Ct. App. 2008).Google Scholar
Quiroz v. ALCOA, Inc., 416 P.3d 824 (Ariz. 2018); Certainteed Corp. v. Fletcher, 794 S.E.2d 641 (Ga. 2016); Simpkins v. CSX Transportation, Inc., 965 N.E.2d 1092 (Ill. 2012); Van Fossen v. MidAmerican Energy Co., 777 N.W.2d 689 (Ia. 2009); Georgia Pacific, LLC v. Farrar, 69 A.3d 1028 (Md. 2013); Miller v. Ford Motor Co., 740 N.W.2d 206 (Mich. 2007); Holdampf v. A.C. & S., Inc., 840 N.E.2d 115 (N.Y. 2005); Palmer v. Quebec, Inc., 874 N.W.2d 303 (N.D. 2016).Google Scholar
Kan. Stat. Ann. § 60-4905(a); Ohio Code Ann. § 2307.941(a)(1).Google Scholar
FL, HI, ID, MA, MN, MS, MT, NE, NV, NH, NM, NC, OR, SC, SD, UT, VT, WV, WY.Google Scholar
American Law Institute, Restatement (Third) of the Law of Torts § 20 (2010).Google Scholar
817 F. Supp.2d 1382 (W.D. Mich. 1993).Google Scholar
Id. at 1398-1399. See Sentome, V.W., “ttacking the Hidden Epidemic: Why a Strict Liability Standard Should Govern the Transmission of Sexually Transmitted Disease” University of Chicago Legal Forum 2006, no. 1 (2006), art. 14, available at <http://chicagoun-bound.uchicago.edu/uclf/vol2006/iss1/14 (last visited Dec. 2020).Google Scholar
Id. at § 3.Google Scholar
384 P.3d 283 (Cal. 2016).CrossRefGoogle Scholar
In a companion case, Haver v. BNSF Railway Co., Lynn Haver’s surviving children brought a wrongful death and survival action in which they alleged that her mesothelioma resulted from take-home exposures of her former husband.Google Scholar
Kesner, 384 P.3d at 301.Google Scholar
OSHA violations do not require the negligence of the employer and therefore cannot be evidence of negligence.Google Scholar
Rothstein, M.A., supra note 7, at 800-801.Google Scholar
Id. at 802.Google Scholar
Occupational Safety and Health Administration, Guidance on Preparing Workplaces for COVID-19, OSHA No. 3990-02 (2020), available at <https://www.osha.gov/Publications/OSHA3990.pdf< (last visited Oct. 24, 2020).Google Scholar
Rothstein, M.A., supra note 7, at 804-810.Google Scholar
Id. at 805.Google Scholar
Id. at 806-807.Google Scholar
American Law Institute, Restatement (Third) of the Law of Torts § 15 (2010).Google Scholar
Rothstein, M.A., supra note 7, at 810.Google Scholar
See, e.g., Deyoe v. Clark Equipment Co., 655 P.2d 1333 (Ariz. Ct. App. 1982) (OSHA standard admissible by defendant in products liability action).Google Scholar
American Law Institute, Restatement (Third) of the Law of Torts § 26 (2010).Google Scholar
It is beyond the scope of this article to explore the possible use of viral RNA sequencing or other techniques to identify specific strains or mutations.Google Scholar
Keeton, W.P. et al., Prosser and Keeton on Torts (St. Paul, MN: West Publishing Co., 5th ed. 1984: at 270 (footnote omitted).Google Scholar
Kesner, 384 P.3d at 292-293, citing Rowland v. Christian, 443 P.2d 561 (Cal. 1968).Google Scholar
Cf. Bobo v. Tennessee Valley Authority, 855 F.3d 12944 (11th Cir. 2017) (discussing whether Alabama law would permit certain medical expenses).Google Scholar
In what certainly would qualify as willful and wanton disregard for the safety and health of employees, plaintiffs in a wrongful death lawsuit against Tyson Foods alleged that the meatpacker ordered sick employees to report for work and the plant manager organized a betting pool for supervisors and managers to wager how many plant employees would test positive for COVID-19. See C. Kauffman, “Lawsuit: Tyson Managers Bet Money on How Many Workers Would Contract COVID-19,” Iowa Capital Dispatch, Nov. 19, 2020, available at <https://iowacapitaldis-patch.com/2020/11/18/lawsuit-tyson-managers-bet-money-on-how-many-workers-would-contract-covid-19/< (last visited Nov. 21, 2020). Similarly, in a wrongful death case in Florida, the children of a deceased employee alleged that Publix supermarkets prohibited workers in its deli, meat, and seafood departments to wear masks, thereby leading to the death of their deli worker-father from COVID-19. See D.J. Neal, “Lawsuit by Publix Worker’s Children: Company’s Mask Policies Led to His COVID-19 Death,” Miami Herald (Nov. 23, 2020), available at <https://www.miamiherald.com/news/coronavirus/article247369949.html< (last visited Nov. 24, 2020).Google Scholar
See Michaels, D. and Wagner, G.R., “Occupational Safety and Health Administration (OSHA) and Worker Safety During the COVID-19 Pandemic,” Journal of the American Medical Association 324, no. 14 (2020): 1389–1390; M.A. Rothstein, “OSHA’s Fatal Flaws Exposed by COVID-19 Pandemic,” The Hill, May 4, 2020, available at <https://thehill.com/opin-ion/civil-rights/495999-oshas-fatal-flaws-exposed-by-covid-19-pandemic< (last visited Oct. 19, 2020).CrossRefGoogle ScholarPubMed
OSHA.gov/enforcement/covid-19-data (9,488 complaints filed as of Oct. 18, 2020) (last visited Oct. 19, 2020).Google Scholar
Hussein, F., “OSHA Touts $1.2 Million in Virus-Related Fines for 85 Businesses,” Bloomberg Law News, Oct. 19, 2020.Google Scholar
Id.Google Scholar
See Scheiber, N., “OSHA’s Covid Oversight Is Criticized,” New York Times, Oct. 23, 2020, at B1.Google Scholar
California and some other states with state OSHA plans have promulgated COVID-19-specific regulations. See Rolfsen, B., “California Worker Safety Regulators Approve COVID-19 Rule,” Bloomberg Law, Nov. 19, 2020, available at <https://www.bloomberglaw.com/document/X6U0Q700000000?bwid=00000175-dfc-dc7d-aff5-ffffa8f90002&emc = bcvnw_nl%-3A6&et=NEWSLETTER&link=eyJjd-Hh0IjoiQ1ZOVyIsImlkIjoiMDAwMDAxNzUtZDZmYy1kYzdkLWFmZjUtZmZmZmE4ZjkwMDAyIiwic2lnIjoiM-VgxK3J3cldvNzN2Rm5zQzlpeGtvTld-lK1JnPSIsInRpbWUiOiIxNjA1OD-k5OTIzIiwidXVpZCI6IjNXcEVwVWx-pQmlKSzQ4elJJS0dIdkE9PStoTUx-4OFZVUXBjRnB5MnZIYzAvdUE9P-SIsInYiOiIxIn0%3D&qid=7014858< last visited Nov. 21, 2020).Google Scholar
See In re AFL-CIO, 2020 WL 3125324 (DC Cir., June 11, 2020) (deferring to OSHA’s assertion that an emergency temporary standard is not necessary “at this time,” the court denied a petition for mandamus directing OSHA to issue a standard for COVID-19).Google Scholar
Occupational Safety and Health Administration, supra note 32.Google Scholar
Centers for Disease Control and Prevention, Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19), May 2020, available at <https://www.cdc.gov/coronavirus/2019-ncov/com-munity/guidance-business-response.html> (last visited Oct. 19, 2020).+(last+visited+Oct.+19,+2020).>Google Scholar
See Rothstein, M.A. and Irzyk, J., “Lawsuits of Last Resort: Employees Fight for Safe Workplaces During COVID-19,” Hastings Bioethics Forum (July 29, 2020), available at <http://www.thehastingscenter.org/lawsuits-of-last-resort-employees-fight-for-safe-workplaces-during-covid-19> (last visited Oct. 19, 2020) (noting that in the absence of OSHA enforcement some employees have sued their employers alleging a violation of public nuisance law).CrossRefGoogle Scholar
Larson, L.K., Larson’s Workers’ Compensation Law § 43.05 (Newark, NJ: Matthew Bender & Co., 2018).Google Scholar
See Fortin, J., “Battle for Compensation with Colorodo Meat Plant” New York Times, October 8, 2020, at A10 (describing employer opposition to workers’ compensation claims filed by employees of meatpacking plants).Google Scholar
See Ogletree Deakins, Orders and Other Authority or Guidance to Provide Workers’ Compensation (WC) Coverage for COVID-19 (Nov. 23, 2020), available at <https://ogletree.com/app/uploads/covid-19/COVID-19-Workers-Compen-sation-Coverage.pdf?Version=12> (last visited Nov. 25, 2020).+(last+visited+Nov.+25,+2020).>Google Scholar
Georgia, Idaho, Iowa, Kansas, Louisiana, Mississippi, Nevada, North Carolina, Ohio, Oklahoma, Tennessee, Utah, and Wyoming. Other states have adopted more limited laws or executive orders, such as prohibiting liability claims against health care providers or suppliers of personal protective equipment. Governor Tom Wolf of Pennsylvania vetoed legislation. In his veto message he stated: “Shielding entities from liability in such a broad fashion as provided under this bill invites the potential for carelessness and disregard for public safety.” See Marr, C., “Coronavirus Liability Shield Vetoed by Pennsylvania Governor,” Bloomberg Law News, Nov. 30, 2020, available at <https://www.bloomberglaw.com/exp/eyJjdHh0IjoiQ1ZOVyIsImlkIjoiM-DAwMDAxNzYtMWEwZC1kNmQ1L-WE5NzYtZGUyZjJlZGYwMDAxIi-wic2lnIjoib2pPR2lVZmx4ZE1jejZB-NjJIdmN1ajA3M1IwPSIsInRpbWUi-OiIxNjA2ODUwMjQ0IiwidXVpZ-CI6IlJ2YUhMdUhqNWlhZHRwTD-BzYXRqNXc9PTdTUE1wekZPRWZCYmxjSkxGTE84RWc9PSIsInYiOiIxIn0=?usertype=External&bwid=00000176-1a0d-d6d5-a976-de2f2edf0001&qid=7019847&cti=LSCH&uc=1320027992&et=NEWSLETTER&emc=bcvnw_nl%3A3&source=newsletter&item=body-link&region=text-section> (last visited Dec. 1, 2020).+(last+visited+Dec.+1,+2020).>Google Scholar
The Republican party has introduced tort reform legislation called the SAFE TO WORK Act into every Senate bill on COVID-19 relief, available at <https://news.bloomberglaw.com/daily-labor-report/employers-get-major-protec-tions-in-gop-liability-shield-bill> (last visited Nov. 17, 2020).The bill would immunize employers from lawsuits if the employer made a “good faith effort” to follow government guidance to stop the spread of COVID-19. The liability shield is extremely broad, and Democrats have called the provisions a “nonstarter.” Id.+(last+visited+Nov.+17,+2020).The+bill+would+immunize+employers+from+lawsuits+if+the+employer+made+a+“good+faith+effort”+to+follow+government+guidance+to+stop+the+spread+of+COVID-19.+The+liability+shield+is+extremely+broad,+and+Democrats+have+called+the+provisions+a+“nonstarter.”+Id.>Google Scholar
Workers and their families would not be worse off under a government-funded administrative payment system than a tort system because plaintiffs would be unlikely to obtain any recovery from insolvent small businesses.Google Scholar
Centers for Disease Control and Prevention, Contact Tracing for COVID-19 (revised Oct. 21, 2020), available at <https://www.cdc.gov/coronavirus/2019-ncov/php/contact-tracing/contact-tracing-plan/contact-tracing.html> (last visited Oct. 29, 2020).+(last+visited+Oct.+29,+2020).>Google Scholar