Her Husband Got Covid-19. She’s Suing His Employer.

(Bloomberg Opinion) -- Suppose your spouse gets Covid-19 at work — and you get it from your spouse. Can you sue your spouse’s employer for the harm that you’ve suffered? That’s the question raised by a lawsuit recently filed in federal court in California — and the outcome may matter a lot.

Corby Kuciemba argues that her husband got sick when his employer, Victory Woodworks, moved workers to a new site, allegedly in violation of safety protocols. The couple both tested positive in mid-July, and Corby Kuciemba, who is 65 and described in the lawsuit as “a high risk individual due to her age and health,” had a particularly severe case and spent weeks on a ventilator. The question is whether, in allowing the husband to contract Covid-19, the employer violated a duty not only to an employee, but also to the employee’s spouse.

The answer isn’t trivial. According to a November 2020 research letter published in the Journal of the American Medical Association, over 20 million adults already at higher risk for Covid-19 infection live with workers who are deemed essential and can’t work from home.  That’s a lot of people who could potentially get sick — and a lot of potential plaintiffs. And although Bloomberg describes the judge in Kuciemba’s case as skeptical, we shouldn’t be too quick to assume that the lawsuit will wind up dismissed.

The case involves what’s known as a “take-home” tort. The typical take-home suit arises when a family member becomes ill after a spouse comes home from work in clothing that carries trace amounts of a toxin — typically asbestos or lead — from the workplace. Some scholars argue that household transmission of Covid-19 acquired in the workplace should be treated the same way.

But even in the cases about toxins in clothing, the courts are split over whether employers have a duty to protect family members. A classic “no duty” case is Holdampf v. A.C. & S. Inc., decided by the New York Court of Appeals in 2005. The plaintiff alleged that she had contracted mesothelioma by washing her husband’s work clothes, which were sometimes contaminated with asbestos. The trial court dismissed the lawsuit, and the state’s highest court agreed, holding that the employer owed no duty of care to the spouse of an employee.

Other states have reached the opposite conclusion. Among the most recent cases to allow a take-home suit is Ramsey v. Georgia Southern University, decided in 2018 by the Supreme Court of Delaware. The facts were not unlike those of Holdampf: a lawsuit on behalf of a wife (in this case deceased) who claimed to have been made sick by asbestos lingering in her husband’s clothes when he came home from work. The justices held that the lawsuit could go forward against both the clothing manufacturer (for failing to provide instructions on safe laundering) and the employer (because if the manufacturer is liable, it would be “neither fair nor efficient to immunize employers”).

California, where Kuciemba filed her lawsuit, has long been a “take-home” liability jurisdiction, within limits. In 2016, in a case brought by a nephew who alleged that he became ill because he stayed at his uncle’s house three days a week for six years, the state Supreme Court cautioned that the tort is available only when employer can foresee “both the regularity and intensity of contact that occurs in a worker's home.” 

When the plaintiff is a spouse, that test is easily met. But Kuciemba faces other hurdles. The highest is proving that her husband’s case of Covid-19 was indeed contracted in the workplace. The inability to meet this challenge has doomed many lawsuits by employees and seems to be the reason for the trial judge’s apparent skepticism about the suit.

Suppose, however, that Kuciemba prevails. Many businesses will cry financial doom. But it’s hard to know if they’d be right. Ordinarily, we want everyone, including businesses, to internalize the costs that their actions cast upon others. Sometimes, we might place limits on liability because the costs are too hard to foresee, or, in a particular emergency, too expensive. Here, we simply don’t have enough information to make predictions.

That’s not to say we have no data at all. We know, for instance, that the likelihood of household transmission of Covid-19 is higher than that of other related respiratory viruses. We know that the likelihood rises with the size of the household. We also know that overall infection rates are lower when workers stay home. What we don’t know is how many people have actually become sick as a result of workplace transmission, let alone what’s happened in their households.

Early in the pandemic, household spread connected to workplace infection resulted heavily from outbreaks in manufacturing, agriculture, transportation and warehousing. A study published in the British Medical Journal, analyzing statistics through July 2020, found that the workers most at risk for Covid-19 infection were those employed in medical support staff, social services and transportation.  One presumes that their households shared the risks. On the other hand, in the ensuing months, employers have taken far more precautions.

Alas, without good numbers, we can’t assess what impact a victory for Kuciemba might have. But here’s a prediction that’s easy to make: If she wins, a lot more lawsuits will follow.

Unfortunately, the JAMA research letter does not seem to provide a separate figure for the number of family members at risk. I calculated the number by taking from the study’s Table 2 and its explanatory text the number of increased-risk adults holding essential jobs and unable to work at home (34.1 million) and subtracting it from the number of increased-risk adults “who either lived with or were themselves essential employees” (56.7 million) —yielding 22.6 million.

Although the case did not turn on this point, the court pointed out that the husband could have had his work clothes laundered by the employer, but instead chose to wear them home.

Risks in the U.S. seem similar. For example, during 2020, workers at U.S. nursing homes had one of the highest death rates of any profession – and much higher than in previous years.(Despite the known risk, the Centers for Disease Control has confirmed anecdotal reports that most nursing home employees seem to be refusing the vaccine.)

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”

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