The COVID-19 pandemic has taken an unthinkable toll on the United States, taking over 1.1 million American lives in the past three years.^[1] In the pandemic's aftermath, some families of those taken by the disease and others seriously injured by it have brought personal injury claims in state court. But some of these COVID claims — particularly those involving employees who acquired COVID while working — should not be permitted to proceed in state court.

In many states, the workers' compensation process is the exclusive remedy for employees who are injured or sustain an occupational disease while working. Under these exclusivity provisions, employees are generally barred from suing their employers for damages from personal injury or occupational illnesses acquired on the job — including harm or injuries from certain viral illnesses — absent rare circumstances, such as the employer deliberately trying to kill or injure the employee.^[2] But given the rapid transmissibility of the novel coronavirus, workers who acquired the disease often infected close family members. This has spawned "take-home" COVID litigation—where the plaintiffs assert that an employer is liable for inadequate workplace infection-control measures, causing an employee to acquire COVID and to infect his or her spouse, children, or other family members. Because such claims are brought on behalf of a non-employee family member, plaintiffs have argued that they are not subject to workers' compensation exclusivity provisions.

Several courts have held that take-home COVID claims are impermissible as a matter of law, including California courts and — in a case handled by Goodell DeVries — a Maryland state court addressing claims brought under Maryland and D.C. law.

California recently rejected take-home COVID claims on the basis of public policy

In July 2023, the California Supreme Court addressed a take-home COVID claim in Kuciemba v. Victory Woodworks, Inc.^[3] In March 2020, Plaintiff Robert Kuciemba was working at a construction site in San Francisco for Victory Woodworks.^[4] Two months later, the company transferred a group of other employees to his work site from another location where they may have been exposed to the virus, allegedly without taking the precautions required by the county's health order.^[5] After working with these employees, Robert became infected, returned home, and infected his wife, Corby Kuciemba.^[6] Corby was later hospitalized for several weeks.^[7]

The Kuciembas sued Victory Woodworks in California state court. The case was transferred to federal court, which dismissed the claims, prompting an appeal to the Ninth Circuit Court of Appeals, which then submitted certified questions to the California Supreme Court. It asked whether (1) the claims were barred by California's workers' compensation exclusivity statute and (2) "an employer owe[s] a duty of care under California law to prevent the spread of COVID-19 to employees' household members[.]"^[8] The California Supreme Court held that the California workers' compensation exclusivity provisions did not bar claims brought by a spouse or other non-employee relative.^[9]

The next question, whether the employer owed a duty to non-employees to prevent take-home Covid, produced the more significant analysis and holding. The court noted that the general duty in tort under California law is very broad, with "the default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others."^[10] The Court held that the default rule of duty "applies in the COVID-19 context," but that this "does not end the matter" because courts can recognize exceptions to the general rule of duty "when supported by compelling policy considerations."^[11]

California courts employ a multi-factor test to determine if policy considerations justify a departure from the default presumption of duty.^[12] The California Supreme Court held that most of those factors favored imposing a duty because (1) "it is plainly foreseeable that an employee who is exposed to the virus through his employer's negligence will pass the virus to a household member"^[13] and (2) the defendant's conduct deserves "moral blame."^[14] But the court also held that the factor of the "burden to the defendant and consequences to the community" weighed strongly against imposition of a duty.^[15] It found that, with imposition of a duty, "the prospect of liability for infections outside the workplace could encourage employers to adopt precautions that unduly slow the delivery of essential services to the public" or even to "shut down if a new pandemic hits."^[16] And "a duty to prevent secondary COVID-19 infections would extend to all workplaces, making every employer in California a potential defendant," such that "even limiting a duty of care to employees' household members, the pool of potential plaintiffs would be enormous, numbering not thousands but millions of Californians."^[17]

Ultimately, weighing the factors, the California Supreme Court unanimously refused to find a duty for take-home COVID claims given the "daunting" and "intolerable" financial burden on defendants, the judicial system, and the community of litigating such claims.^[18] Thereafter, the Ninth Circuit affirmed dismissal of the Kuciembas' claims.^[19]

Goodell DeVries won dismissal of a take-home COVID claim in Maryland state court

The California Supreme Court in Kuciemba noted that courts applying Maryland law had similarly dismissed take-home COVID claims, including a case brought against Southwest Airlines.^[20] The California court recognized that "Maryland law is especially focused on limiting duty in the third party^[21] context." Indeed, Maryland courts have declined to permit take-home claims, holding that an employer owed no duty to a spouse who allegedly developed mesothelioma from asbestos fibers brought home in her husband's clothes,^[22] and that a laboratory owed no duty to a third-party spouse who was infected with HIV by her spouse, who had apparently contracted the virus in a workplace accident.^[23]

Goodell DeVries attorneys Kelly Hughes Iverson, Marianne DePaulo Plant, Derek Stikeleather, and Sean Gugerty represented Sibley Memorial Hospital in a three-count wrongful death claim brought by a former hospital nurse who claimed she contracted COVID-19 from a patient or co-worker in the District of Columbia hospital in March 2020, and in turn infected her husband at their Maryland home, ultimately causing his death. In March 2021, following a motion to dismiss and argument from Ms. Iverson and Mr. Gugerty, the Circuit Court for Montgomery County, Maryland dismissed all claims against the hospital, with prejudice. The court explicitly found that the hospital owed no duty to the third-party spouse under either Maryland or D.C. law.

Takeaways for Maryland and D.C. employers

The reasoning of the Kuciemba decision, Maryland and D.C. precedent limiting duty to third parties, and the Sibley Memorial Hospital case all indicate that Maryland and D.C. courts should dismiss future take-home COVID claims. Employers who face lawsuits or pre-suit claims raising take-home COVID allegations, or other types of COVID claims, should consult with counsel as to potential defenses and the prospect of dismissal for such claims.

Goodell DeVries is a regional law firm with a national presence. Our team of attorneys handles the most complex legal challenges for clients across the country in business law, medical malpractice law, appellate matters, complex commercial litigation, insurance, and more. If you have a COVID claim and would like to consult with an attorney at Goodell DeVries, please contact us here.

NOTES

^[1] CDC Covid Data Tracker, available at https://covid.cdc.gov/covid-data-tracker/#datatracker-home (last accessed August 25, 2023).

^[2] Maryland Code, Ann., Labor and Employment § 9-509; see also D.C. Code § 32–1504.

^[3] 14 Cal. 5th 993 (2023).

^[4] Id. at 1005.

^[5] Id.

^[6] Id.

^[7] Id.

^[8] Id. at 1004.

^[9] Id. at 1005-1016.

^[10] Id. at 1016 (internal citations omitted).

^[11] Id. at 1021

^[12] Id. (citing Rowland v. Christian, 69 Cal.2d 108 (1968)).

^[13] Id. at 1025.

^[14] Id. at 1026.

^[15] Id. at 1026-1030.

^[16] Id. at 1028.

^[17] Id. at 1029.

^[18] Id. at 1030-1031

^[19] Kuciemba v. Victory Woodworks, Inc., 74 F.4th 1039 (9th Cir. 2023).

^[20] See Estate of Madden v. Sw. Airlines, Co., Civil Action No. 1:21-cv-00672-SAG, 2021 U.S. Dist. LEXIS 117266 (D. Md. June 23, 2021).

^[21] Kuciemba, 14 Cal. 5th at 1032.

^[22] Adams v. Owens-Illinois, Inc., 119 Md. App. 395 (1998).

^[23] Doe v. Pharmacia & Upjohn Co., 388 Md. 407, 879 A.2d 1088 (2005).