Increase in ‘Take-Home’ COVID-19 Litigation Creates Fear of ‘Never-Ending’ Liability for Employers

January 13, 2022

As COVID-19 continues to spread, recent news has highlighted the risk of “take-home” COVID-19 cases and the potential for “never-ending” liability for businesses. So-called take-home lawsuits are filed by employees’ domestic relatives for diseases or illnesses caused by exposures that allegedly traveled home through the employee.

On Jan. 12, 2022, Reuters reported “at least 23 take-home COVID-19 lawsuits” have been filed in the United States, including lawsuits against employers in the travel, retail and food-processing industries.

In a piece published in Bloomberg Law in October 2021, McGuireWoods partners Sam Tarry and Davis Walsh predicted such cases would increase if liability protections were not instituted. In calling for federal liability protection, Tarry and Walsh wrote: “Recent court decisions highlight the ongoing risks of Covid-19 claims from workers, consumers, and even individuals who never set foot into the work environment.”

In an interview with Business Insurance, Walsh discussed the ongoing increase in cases: “[W]e’ve generally seen a very limited number of lawsuits related to [contracting] COVID. Now that the courts have allowed these cases to proceed, I think that’s going to change — we’re going to see more of those types of lawsuits[.]”

The recent news confirms that the risk that employees’ family members who contract COVID-19 will file suit is growing. A recent state appellate decision in California may open the door to a flood of these types of lawsuits, which one business group warned could mean a “never-ending chain” of liability.

Some states have instituted state-level protections that should aid employers. For example, North Carolina instituted a bar on lawsuits related to contracting COVID-19 except in cases of gross negligence or intentional conduct. The Reuters article estimates that 30 states may protect businesses against COVID-19 liability, but this number may be artificially high, given the number of those states that require businesses to prove compliance with certain requirements.

Until and unless more state legislatures or Congress take action to limit employer duties to control of their physical workspaces, “take-home” litigation is likely to spread along with the coronavirus.