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COVID-19 Raising “Take-home Tort” Questions

covid19 the subject of a new take-home tort in CaliforniaA recent opinion piece published on Bloomberg raises an interesting – and very timely – question: if your spouse’s employer requires your spouse to come to the work environment and contracts COVID-19, and then you contract the disease from your spouse, can you sue your spouse’s employer?

The question is not just a theoretical exercise. It is, indeed, the basis for a lawsuit recently filed in federal court in California. And it has the full attention of the legal community.

According to the complaint, 65-year-old Corby Kuciemba contracted COVID-19 after her husband brought it home as a result of his employer’s movement of workers to a new worksite. The move itself is alleged to have been in violation of known COVID-19 protection protocols. Both would eventually test positive, and Kuciemba – a “high risk individual due to her age and health” – was put on a ventilator and spent weeks fighting for her life.

A take-home tort examines the question of whether employers not only have the responsibility to keep their employees safe from hazards in the workplace, but also their employees’ families. According to the Bloomberg piece, a garden variety take-home tort might ask whether a family member can sue because they contracted mesothelioma from the asbestos fibers that might have been on the clothing worn by a family member employed by a company that deals with the carcinogen. The same question might go for lead exposure and other toxins.

The goal of the Kuciemba case then is to apply the same principle to biological illnesses like COVID-19. Experts are divided as to whether the case will be successful. The Kuciemba lawsuit has been filed in California which has a history of assigning liability in take-home cases, but has also been shown to keep the scopes of those findings on a fairly tight leash. The state Supreme Court established that the take-home tort is only applicable in cases where an employer can foresee “both the regularity and intensity of contact that occurs in a worker’s home.”

COVID-19 has changed nearly everything about how we as a society view work, workspaces, and the employees that work in those workspaces. The Kuciemba case may now bring about a reckoning of how we account for those employees’ families as well.