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(c) 2022 Jon L Gelman, All Rights Reserved.

Wednesday, December 22, 2021

Household Contacts can sue an employer for harm caused by COVID

The longstanding principle that household contacts of an employee can sue an employer for harm has been upheld in a California claim. An employee who brought home the COVID virus and infected a household member, in this case, death, was the basis of a direct case by the deceased family member’s estate against the employer.

The court wrote, “Plaintiffs allege that Mrs. Ek, defendants’ employee, contracted COVID-19 at work because of defendants’ failure to implement adequate safety measures. They claim that Mr. Ek subsequently caught the disease from Mrs. Ek while she convalesced at home. He died from the disease a month later.” See's Candies, Inc. v. Matilke Ek, Docket #20STCV49673, (App.Div. CA 2021)  Decided Dec, 21, 2021. The court reasoned that the employee contracted the COVID-19 virus at work and then brought it home, causing their family members to become Ill. The employer was directly liable for negligently maintaining a workplace that was safe and protected from exposure to infectious disease.
The concept of litigation by household contact is longstanding. A negligence action can be brought by the household contact directly against the employer. The case is identical to the claims right by family members of Asbestos workers who brought fiber home on their clothes, contaminated the household environment, and subjected the household members to diseases such as Asbestosis, lung cancer, and mesothelioma.

New Jersey has long-recognized household claims and has permitted that to recover against the employer by instituting a civil action based on negligence.

“A spouse of a former employee, Exxon, contracted mesothelioma due to her husband's occupational exposure to asbestos fiber at work. The husband had been employed by Exxon and was exposed to asbestos fiber while insulating and repairing equipment. He brought the asbestos home on his work clothes that the spouse laundered at home,

“While the spouse was also a former employee of Exxon, she was employed in a capacity where she did not come into occupational contact with asbestos fiber. The evidence established at trial demonstrated that mesothelioma is rare cancer that was exclusively related to exposure to asbestos fiber. The court held that the “Exclusivity Rule” did not bar a claim by the spouse directly against the employer. The court also held that the bystander exposure to asbestos fiber by way of the husband's employment need not be the sole exposure to asbestos that the spouse suffered and that it only needed to be a substantial contributing factor to the disease process. The court reasoned that the “dual persona doctrine” was applicable and that the employer had taken on a completely separate and independent role with respect to the spouse that was totally separate and unrelated to that of employment. Anderson v. A.J. Friedman Supply Co., Inc., 416 N.J. Super. 46, 3 A.3d 545, 31 I.E.R. Cas. (BNA) 330 (App. Div. 2010). Gelman, Jon L, Workers’ Compensation Law, 38 NJPRAC 9.22 (Thomson-Reuters 2021).

Employers must follow precautions and strategies to protect the environment to prevent such claims. Employers are encouraged to seek advice from experts in pandemic preparedness to maintain a safe and profitable work environment.

Recommended Citation: Gelman, Jon L., Household Contacts can sue an employer for harm caused by COVID' Compensation Blog (Dec. 22, 2021), https://workers-compensation.blogspot.com/2021/12/household-contacts-can-sue-employer-for.html

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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (Thomson-Reuters). For over five decades the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Blog: Workers ' Compensation
Twitter: jongelman
LinkedIn: JonGelman
LinkedIn Group: Injured Workers Law & Advocacy Group
Author: "Workers' Compensation Law" Thomson-Reuters