Can family members pursue Coronavirus injury claims against an employer for failing to protect worker against COVID exposure?
Employers are responsible for protecting their employees from harm under both state and federal law while they are on the job. This includes keeping workers safe from exposure to the Coronavirus and their contracting of COVID-19. For more details, consider our earlier discussions which include the basic federal duty imposed by the “General Duty Clause“ of the Occupational Safety and Health Act of 1970 (29 U.S.C. §654), which states:
“Each employer (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees….”
See:
- Coronavirus Reopening in Indiana and Illinois: Duty of Care to Protect Employees against COVID-19 Exposure
- Employers’ Duty to Protect Workers during Coronavirus Outbreak
- Coronavirus Alerts from OSHA: Guidance Given to Employers for Protecting Workers from COVID-19 but No New Legal Standards Issued.
We continue to warn that more and more workers will suffer and die because of their employer’s failure to protect them from COVID on the job, and as a result legal claims based upon negligence, gross negligence, and wrongful death will be filed by grieving family members all across the nation. See, e.g., “Families File First Wave of Covid-19 Lawsuits Against Companies Over Worker Deaths,” written by Janet Adamy and published by the Wall Street Journal on July 30, 2020.
As the Coronavirus Pandemic continues unabated in Indiana, Illinois, and the rest of the country (and the world), the scope of the employer’s liability for failing to keep workers safe must be considered as it applies not only to the individual worker but also to that worker’s immediate family members, who may also contract the potentially deadly virus after being exposed to COVID-19 by the worker.
Does the Employers’ Duty of Care Extend to Family Members of Workers Who Are Exposed to Coronavirus on the Job?
In the past, there have been lawsuits filed by family members who have become seriously or fatally ill as a result of a worker’s exposure while at work to a hazard “likely to cause death or serious physical harm” (quoting the above OSHA provision).
Secondary Exposure Legal Precedent: Asbestos and Mesothelioma
Precedent has already established the employer’s duty in these situations, as for example when family members suffer an asbestos-related illness because of a worker’s exposure to the toxic material. These family members are called victims of “secondary exposure.” Employers have been held liable for the harm suffered by these secondary exposure victims. See, e.g., Snow, Jake. “Considering Duty in Take-Home Asbestos Exposure Cases.“ Liberty UL Rev. 12 (2017): 199.
For more on asbestos and mesothelioma causes of action, read:
- Our Practice Area Discussion of Mesothelioma Injury Cases; and
- “Asbestos Exposure Still Happens – Indiana Supreme Court Helps Mesothelioma Victims.”
Asbestos is not the only situation where secondary exposure victims in the worker’s family suffer serious or fatal harm. There are other possible “take home toxin” exposures, where a worker’s family is harmed because of an employer’s failure to keep the workplace safe. These are called “Take Home Toxic Tort” claims. See, Ward, Nicole. “When Laundry Becomes Deadly: Why the Extension of Duty Past Spouses in Schwartz v. Accuratus Corp. Hold the Right People Responsible for Take-Home Toxic Torts.” Vill. L. Rev. 62 (2017): 457.
COVID Exposure of Worker’s Family Members as Take Home Toxic Tort Cases
This week, Reuters published an article focusing upon two new lawsuits filed in the State of Illinois that may be the first in the country asserting Take Home Toxic Tort claims based upon an employee’s exposure to the Coronavirus.
In “’Take home’ lawsuits over COVID infections could be costly for U.S. employers ,” written by Tom Hals and published by Reuters on September 28, 2020, a wrongful death case brought against the Aurora Packing Company and a personal injury case against Byrne & Schaefer, Inc., of Lockport, Illinois, are discussed. Both cases are based upon situations where it is asserted that workers were exposed to the Coronavirus while on the job due to the employer’s breach of its duty of care, and then family members (a mother; a wife) became ill with COVID-19.
Of importance here will be the ability of the plaintiffs to demonstrate that the employers knew of the likelihood that the workers were being exposed to COVID-19 and were also likely to be carrying the virus home to their families. This is the foreseeability element of the cause of action that family members will have to prove with admissible and authenticated evidence in order to support their claims for relief. See, e.g., Estate of Holmes v. Pneumo Abex, LLC, 955 N.E.2d 1173, 2011 I.L. App (4th) 100462, 353 Ill. Dec. 362 (App. Ct. 2011).
For more on proving a Coronavirus injury claim, read:
- Coronavirus on the Job: Proving Employee Exposure Claims Against Employer for COVID-19 Injury
- COVID-19 Workers’Compensation Claims: Illinois versus Indiana
- Emotional Distress Caused by COVID-19: Recognized Harm to Victims As a Legal Claim for Relief?
- Coronavirus Lawsuits and COVID19 Legal Claims in Indiana and Illinois: Wrongful Death or Serious Injury.
Family Members Seeking Justice against Employers for COVID Illness after Coronavirus Exposure
In the months since the Coronavirus Pandemic changed all our lives, more and more information and advice has been shared with employers on how to keep workers safe from exposure to this virus. Businesses understand that certain safety measures (social distancing, for instance) are standard across the board, and that others are necessary for specific industries (like meat packing plants).
There can be no excuse at this point in time for an employer to defend its actions by claiming a lack of knowledge or awareness of how to keep workers safe while on the job from the Coronavirus. Businesses are expecting to be sued for COVID illness damages, and continue to seek legal liability protections from Congress. See “COVD-19: Proposed Safe to Work Act Would Provide Businesses Broad COVID-19 Liability Protections,” published by the National Law Review on September 4, 2020.
In the meantime, the scope of their accountability for putting profits over people is clearly becoming broader, as family members are suffering serious illness or death because of the employer’s failure to protect workers. These victims deserve justice as “secondary exposure victims” to the company’s breach of its duty of health and safety on the job site. Infected family members will have legal claims to assert against employers, as well, based upon state and federal law.
If you or a loved one has suffered from Coronavirus exposure on a work site, then you may have a legal claim for damages to assert against a company that failed in its duty to protect people while they were working on the job. Please be careful out there!
