Law360 (May 29, 2020, 5:00 PM EDT) --
With COVID-19 still omnipresent, employers are asking important questions about the scope of liability they may face by reopening. If Congress does not pass (or the courts were not to enforce) complete immunity for COVID-19 exposure claims, employers must consider ways to limit their liability.
Businesses are considering how to limit direct exposure to the virus for their employees and their customers (thereby limiting their liability). Many businesses have already taken commonsense and innovative approaches to protect their employees and customers. However, some businesses may not have considered potential liability they may face for derivative exposure claims.
Because if exposed to COVID-19 at work, employees may also expose their families, friends or roommates. Therefore, employers should be prepared for family members or roommates of their employees to sue them, alleging secondhand workplace exposure. This article explores the current state of the law on derivative workplace injury claims.
Whether employers face liability for take-home exposures will turn on the existence or nonexistence of a duty to the spouses, children, parents, siblings or roommates of their employees.
When determining whether a particular duty exists, courts generally consider several factors, including: (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. Applying these factors, courts considering secondhand or take-home exposure claims generally fall into three camps. Courts that impose:
- No duty on employers vis-a-vis third parties;
- A limited duty on the employer to warn its employees that their families could be subject to secondhand exposure; and
- An affirmative duty on employers to avoid take-home exposures.
Courts imposing no duty on employers vis-a-vis third parties rely on the third, fourth and fifth factors, but chiefly rely on the nonexistence of a relationship between the parties. Courts imposing a limited duty to warn or affirmative duty to protect focus on the foreseeability of the injury and believe that a duty exists when secondhand exposure is predictable. We briefly discuss each of these approaches.
Courts in Arizona, Georgia, Illinois, Iowa, Maryland, Michigan, Pennsylvania, New York and North Dakota have taken the approach that employers owe no duty to third parties for secondhand exposures. While recognizing the foreseeability of employees exposing their friends and family to workplace contaminants, these courts focus on the lack of any legal relationship between an employer and the third party.
These courts have concluded that the specter of limitless liability and the lack of a relationship between the employer and the third party weigh against imposing a duty on the employer. Many of these courts lean on the ancient common law rule that no duty can arise between legal strangers.
Assuming these courts do not reverse course and that they extend their reasoning in asbestos and chemical cases to COVID-19 cases, employers in these states will likely be shielded from tort liability arising from take-home exposures to coronavirus.
When the Delaware Supreme Court first considered the issue of secondhand exposure, it concluded that employers owed no duty to family members of employees. However, the court recently vacated its 2009 decision in Riedel v. ICI Americas Inc. and recognized a limited duty to warn employees about dangerous materials that could be transmitted on their clothing leading to third parties.
In 2018, in Ramsey v. Georgia Southern University Advanced Development Center, the court held that "a fair and efficient accountability system can be established by limiting the duty of ... employers in take-home asbestos exposure cases to providing fair warning about the dangers of laundering to those with whom they have the most proximate relationship. If the employer has done so and given the employee the information needed to protect his spouse, the spouse may not recover from the employer."
It is unclear whether the Delaware Supreme Court would expand its Ramsey decision to apply to COVID-19 cases; however, for employers in Delaware it will be safest to warn their employees that workplace exposure to COVID-19 may lead to secondhand exposures at home. Per the Ramsey decision, these warnings, if given, should insulate employers from third parties' secondhand exposure claims.
State courts in California, Louisiana, New Jersey and Tennessee, along with the U.S. Court of Appeals for the Eleventh Circuit (construing Alabama law), have held that employers owe a duty to protect third parties from dangers emanating from their workplaces when those dangers to third parties are foreseeable. Two other courts have also endorsed a foreseeability-based approach, but found that take-home asbestos was not foreseeable based on the facts of those particular cases.
By adopting the foreseeability approach, these courts discount the importance of a relationship between the tortfeasor and the injured party, and focus exclusively on the preventability of the injury. In states where foreseeability is the key factor in the duty analysis, employers may consider adopting additional safety measures to protect their employees' families, friends and roommates from take-home exposure to COVID-19.
During these challenging times, employers will consider how best to protect their employees from COVID-19 and how to limit their own liability. These considerations should include whether employers owe any duty to protect third parties from take-home exposure.
To assist in this endeavor, this article has laid out the legal positions taken by approximately 15 jurisdictions that have considered the duty an employer owes, if any, to the family, friends or roommates of its employees. As shown, the law on this subject is a mixed bag and many states have never addressed the issue. But there is sufficient legal guidance for employers (and their lawyers) to make educated guesses about the scope of liability for take-home exposures in certain states.
To help defend against direct and derivative exposure claims employers may consider taking a range of steps as their employees return to work. Employers may want to consider:
- Warning their employees about the potential of direct and derivative exposures to COVID-19;
- Forbidding sick employees from coming to the workplace;
- Providing all of their employees with personal protective equipment and requiring them to wear it at all times while on the job;
- Providing personal protective equipment for individuals living in their employees' households;
- Taking the temperatures of their employees (and potentially customers) as they come to and from the workplace;
- Requesting their employees to sign risk/waiver of liability forms as a condition of returning to work. To reduce accusations of coercion, employers may consider offering their employees the options of: (1) signing releases of liability and returning to work, or (2) taking unlimited, unpaid leave during the COVID-19 crisis;
- Encouraging employees with comorbidities to take leave under the Family and Medical Leave Act;
- Encouraging employees to quarantine in one room of their home and avoid contact with their family, friends or roommates as a condition of employment. This policy, albeit extreme, may be the only means of affirmatively protecting third parties from derivative exposures, especially for high-risk employers; and
- Becoming familiar with all local, state and federal regulations and guidance, including the Occupational Safety and Health Administration's COVID-19 guidance, and complying with said directives.
If sued, an employer may also consider testing the outer limits of workers' compensation schemes as a complete legal defense to COVID-19 exposure claims. Because most workers' compensation schemes bar tort suits for work-related injuries, employers could argue that workers' compensation should also exclude a third parties' derivative claim based on secondhand exposure to a workplace toxin or disease.
After all, it would make little sense to bar an employee's primary exposure claim, but allow a family member's secondary exposure claim to proceed. It would also expose employers to enormous liability, which cuts against one of the primary legislative purposes for workers' compensation schemes.
Nevertheless, whether a particular workers' compensation scheme can plausibly be construed to apply to third parties will depend on the specific statutory language used by each state. If employers attempt to utilize workers' compensation exclusivity clauses to shield them from take-home exposure claims, this would create an issue of first impression in virtually every court.
Diane Flannery is a partner and chair of the products, environmental and mass tort litigation department at McGuireWoods LLP.
Chris Michalik is a partner at the firm.
Andrew Gann is an associate at the firm.
Scott Thomas is an associate at the firm.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 Riedel v. ICI Ams., Inc. , 968 A.2d 17 (Del. 2009).
 Ramsey v. Georgia S. Univ. Advanced Dev. Ctr. , 189 A.3d 1255, 1277–78 (Del. 2018).
 Martin v. Cincinnati Gas & Elec. Co. , 561 F.3d 439, 445 (6th Cir. 2009) (applying Kentucky law); Alcoa, Inc. v. Behringer , 235 S.W.3d 456, 462 (Tex. Ct. App. 2007).
 See https://www.osha.gov/Publications/OSHA3990.pdf.
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