The Next Wave of COVID-19 Litigation: “Take Home” Lawsuits

    The potential for employees to contract COVID-19 at their place of employment has been a huge issue during the current pandemic. This is especially true for essential workers who continued to clock in hours despite a nationwide shutdown when the virus first gripped the country. Some states, such as California, have amended their Workers’ Compensation laws to create a “rebuttable presumption” that an essential worker testing positive for COVID-19 had contracted it during their employment. In the severely impacted meatpacking industry, infected employees filed lawsuits against their employers directly. This was the case for over 4,500 workers at Tyson Food’s meatpacking plants who alleged violations in worker safety.

    Employee safety is just one facet of the potential liabilities that a business can face in the COVID-19 era. Businesses are now facing an emerging trend of lawsuits filed by those who are alleging that they contracted COVID-19 through the employee who had taken it home with them. One such “take home” lawsuit, Ugalde v. Aurora Packing Company, Inc., filed in Illinois state court by the daughter of Esperanza Ugalde, alleges wrongful death claims related to her mother’s fatal bout with COVID-19. But unlike prior lawsuits regarding workplace safety, the late Mrs. Ugalde was not an employee of the defendant’s meat processing plant. Rather, according to the complaint, Mrs. Ugalde contracted the virus from her husband who was a worker at the plant. The allegation that COVID-19 can be “taken home” to others due to unsafe working conditions is an issue that requires its own particular legal analysis.

    The “Take Home” Allegations

    The complaint filed in Mrs. Ugalde’s wrongful death lawsuit alleges that she had contracted the virus from her husband, who worked “shoulder to shoulder” with other workers at the defendant’s meat processing plant despite a known outbreak of COVID-19. Mr. Ugalde had worked as a butcher for Aurora Packing for 35 years and Mrs. Ugalde was his stay-at-home wife for 45 years. The complaint outlines that Mr. Ugalde contracted COVID-19 on April 28, 2020 during the scope of his employment, and shortly thereafter on May 2, 2020, Mrs. Ugalde died from the virus. The complaint further alleges that Mrs. Ugalde’s death was a “direct and proximate result” of a number of negligent actions committed by Aurora. This includes Aurora’s failure to warn its employees of a COVID-19 outbreak at the facility or to take any prevention measures. The complaint also alleges the company created a risk of harm by, among other things, failing to disinfect the facility, to provide personal protective equipment to its employees, or to institute a sick leave policy. As the attorney for Mrs. Ugalde’s family states, “By [defendant’s] failures to prevent and mitigate the spread of the virus, in our opinion, it was foreseeable that they would take this virus beyond the facility and infect others within the community.”

    Similarities to Asbestos Litigation

    Between 7% and 9% of the over 200,000 COVID-19 deaths in the United States so far have been attributed to “take home” infections from others who had contracted the virus at their place of employment. Although these specific scenarios might seem novel, the idea that a health risk can be brought home by an employee and hurt a member of the public is reminiscent of previous litigation involving asbestos-related illnesses. For example, in 2013, a California jury awarded $27.3 million in compensatory and punitive damages to the plaintiff after she contracted mesothelioma from the asbestos fibers that her husband carried home on his work clothes when he was working for an insulation installation company in the 1950s.

    Risk analysts have pointed out that COVID-19 litigation is following the trend set forth in asbestos litigation, which first started appearing in the context of worker’s compensation claims filed by workers exposed to the toxin at their place of employment. Asbestos litigation then branched out to products liability claims, and then to “take-home” cases. The fourth wave of asbestos litigation extended to other types of contamination cases in products, such as talc powder, that were available and used by the public. If the history of asbestos litigation is any indicator, it is likely that businesses can face liability for COVID-19 infections in a number of ways.

    How Experts Can Help Establish Liability

    Like any negligence action, a plaintiff will need to establish all necessary elements of the cause of action. They are that the employer had a duty of care, the employer breached that duty, the breach proximately caused injuries, and damages resulted. The most important line of defense for businesses would be to establish proper protocol and safety procedures for its workers. By following CDC guidelines, regulations set forth in OSHA, as well as any and all state and federal laws concerning worker safety, a business will be in a better position to defend against claims that it acted negligently in handling COVID-19. Public health experts, particularly those well-versed in workplace safety and the spread of infectious diseases, can be useful in establishing whether an employer fell below the requisite standards of care.

    According to Praedicat, a firm that evaluates risks for insurers, take-home lawsuits are estimated to cost businesses up to $21 billion if the number of fatalities reaches 300,000. In light of these numbers, it is incumbent upon businesses to promulgate safe work environments to save money, and most importantly, save lives.