A new wave of lawsuits is attempting to impose legal liability on companies whose alleged negligence resulted in an employee becoming infected with the COVID-19 virus and then passing the illness to a household member who became seriously ill or died. The lawsuits claim that the company knew or should have known that its infection control procedures posed a risk to people other than their own employees.

In one reported case attempting to use this theory, a federal district court in California dismissed a lawsuit brought by the wife of a construction worker against her husband’s employer, claiming that the company had a legal duty to keep her safe from infection. The court dismissed the suit on multiple grounds, including statutory workers’ compensation preemption of the claim, as well as the lack of any legal duty of the company to its employees’ relatives.

More recently, a Southwest Airlines flight attendant filed a wrongful death lawsuit against her employer in federal court in Maryland, alleging that her husband died following her becoming infected with COVID-19 in a training session during which COVID-19 precautions were ignored. Southwest has moved to dismiss the claim on the basis that it had no legal duty of care towards the employee’s husband.

A number of states have enacted legislation to bar coronavirus-related liability lawsuits. Even in states that have no such law, the plaintiffs in these cases appear to have an uphill battle in convincing courts to impose legal liability for injuries to third parties based on alleged lack of COVID-19 infection control procedures. Regardless, absent additional legislation intended to curb these claims, plaintiffs’ lawyers are likely to continue testing these legal theories in various federal and state courts.

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