Take-Home Covid in Play Again Before Supreme Court
Happy Wednesday, dear readers!
I hope you aren’t tired of hearing more about COVID19 because there has been a new development in the Kuciemba case. Although the See’s Candies case was sent back to the trial level by the Court of Appeal, with review of the remand denied by the Supreme Court, essentially the same question is to be addressed by the California Supreme Court at the request of the 9th Circuit Court of Appeal.
Back in April of this year, the 9th Circuit asked the California Supreme Court to address whether family members of employees could sue the employer directly for the COVID19 which was brought home. If that’s a confusing set-up, the simple version is this: Jack goes to work and gets exposed to COVID19 at work. Jack comes home and passes COVID19 on to Jill, who lives with him. Jill suffers due to the infection and wants to sue Jack’s employer for negligently exposing Jack to COVID19, enabling him to expose Jill.
If that sounds familiar, that is the exact same path of liability as the California Supreme Court created for asbestos exposure. The question remains if COVID19 will get the same treatment.
In light of this, your humble blogger suggests employers take action now to prepare for the flood of litigation to follow. For all known industrial COVID19 cases, documentation should be taking place of family members, dates of exposure, etc. Employers might consider proactively settling any claim that is questionable and has been denied with a Thomas finding as soon as possible, rather than letting the denial stand and the statute of limitations run.
Finally, employers should be aware that the limited exposure for a healthy employee that bounced back from a positive COVID19 test with no more than a paid vacation quarantine period, might very well have family members that did not tolerate exposure quiet so easily.
From anecdotal evidence, your humble blogger has seen and heard of the administrative burden placed on claims adjusters to set up and properly document fresh COVID cases. Employers may find themselves overwhelmed by the sheer volume of take-home COVID cases they are suddenly forced to address and would be well served by getting ahead of this now.
And, as always, your humble blogger urges you to loop in your workers’ compensation attorney into any preparation for defending potential civil suits – no harm is done by cooperation and coordination.
Nothing would make me happier to be absolutely wrong in this regard and for the Supreme Court to find that no such exposure exists and that COVID19 is not asbestos. But, your humble blogger bears the curse of often enough being right.
Now, let’s all get ready for what lies just ahead as best as we can. Straight on to Friday, dear readers!