By Mark A. Rothstein
Should an employer be held liable if an employee is infected with the SARS-CoV-2 virus in the workplace and subsequently “takes it home” and infects a family member? The California Supreme Court will soon take up this question in Kuciemba v. Victory Woodworks.
The take-home liability theory was developed in the 1990s to provide a remedy for family members exposed to asbestos fibers brought home on the clothing of an employee, which later resulted in severe illness or death. Asbestos presented a unique and compelling case for recovery for a number of reasons: it is responsible for hundreds of thousands of deaths, asbestosis and mesothelioma are diseases solely caused by asbestos exposure, an OSHA standard requires employers to provide protective clothing and changing rooms to prevent take-home exposures, and strict products liability theory may be used because asbestos is a “product.”
Notwithstanding these compelling factors for plaintiffs, the states are about evenly divided on whether they recognize lawsuits based on the take-home theory. Courts in states prohibiting such actions consider the harms unforeseeable, or determine that there is no significant relationship between the exposed family member and the employer, or rely on legislation barring take-home cases.
The California Supreme Court has adopted take home asbestos liability and the California Court of Appeals has applied this to COVID-19, but the California Supreme Court has yet to rule on this specific issue.