I recently listened to one of the most recent Death Panel episodes (it’s currently a Patreon exclusive) about that court ruling in California that said employers were not liable if an employee got COVID from their workplace, which the employee could then spread to their own household. Like the court more or less said that the cost to businesses/“the economy” (i.e. rich people) would be too great and it would open up the floodgates with this kind of litigation because COVID is so pervasive. So I guess all the mass suffering and disability and death that comes from COVID is just a transactional/irrevocable cost of operating society, in the eyes of the court. Obviously not surprising because capitalism, but I digress.

But the court, in their ruling, also then made a parallel with asbestos and people getting sick with that from employer negligence and said that they would take that very seriously, but it’s different than COVID because the number of plaintiffs for asbestos is far lower than the potential number of plaintiffs for COVID (millions). So that’s why it’s okay to protect workers from asbestos but not COVID.

Plaintiffs here contend the burdens resulting from liability for secondary COVID-19 infections can be adequately addressed by imposing a similar limit. For this reason, they ask us to recognize a duty of care extending only to individuals who share a household with the employee. Kesner’s approach cannot be translated so seamlessly into the present context, however. For one thing, the “household members” limit made sense in Kesner because the mechanism of injury there required frequent and sustained contact with asbestos fibers on workers’ clothing and effects. (See Kesner, supra, 1 Cal.5th at pp. 1154–1155.) Yet transmission of the SARS-CoV-2 virus can occur in as little as 15 minutes of contact with an infected person or even after the infected person has left the space.

The broader reach of the proposed duty is another difference, and the most important one, between this case and Kesner. The duty we considered in Kesner involved a relatively small pool of defendants: companies that used asbestos in the workplace. There was also a much smaller pool of potential plaintiffs: household members who were exposed to asbestos from an employee’s clothing and then went on to develop mesothelioma. Here, by contrast, a duty to prevent secondary COVID-19 infections would extend to all workplaces, making every employer in California a potential defendant. And unlike mesothelioma, which is known to be “a very rare cancer, even among persons exposed to asbestos” (Hamilton v. Asbestos Corp (2000) 22 Cal.4th 1127, 1135−1136), the virus that causes COVID-19 is extremely contagious, making infection possible after even a relatively brief exposure. Even limiting a duty of care to employees’ household members, the pool of potential plaintiffs would be enormous, numbering not thousands but millions of Californians. “Ultimately, the limited transmissibility of asbestos provides a natural curb on the pool of potential plaintiffs. With COVID-19, by contrast, the pool of potential plaintiffs isn’t a pool at all — it’s an ocean.”

Basically going mask-off and admitting that, in some instances, they will protect people exposed to (and then who suffer from) a health hazard in the workplace because of employer negligence, but only up to a certain extent, and certainly not if it becomes too expensive and/or the number of victims is too high.

Artie, Bea, and their guest (Nate Holdren) were also talking about the implication of all of this. More specifically, that it seems like a huge internal dissonance to pronounce the pandemic is over and no longer a big deal, while, at the same time, the court ruling pretty clearly states that they are worried that recognizing an employer’s liability for an employee catching COVID at work and spreading it to their household would result in endless litigation and heavily disrupt society:

Imposing on employers a tort duty to each employee’s household members to prevent the spread of this highly transmissible virus would throw open the courthouse doors to a deluge of lawsuits that would be both hard to prove and difficult to cull early in the proceedings,” the opinion said. “Although it is foreseeable that employees infected at work will carry the virus home and infect their loved ones, the dramatic expansion of liability plaintiffs’ suit envisions has the potential to destroy businesses and curtail, if not outright end, the provision of essential public services.

https://www.courts.ca.gov/opinions/documents/S274191.PDF

I understand, among other things, the court saying it would be extremely difficult at this point to prove that an infection was acquired at work and not anywhere else the person may have been. But they also make multiple mentions of how COVID is extremely contagious and potentially fatal. Sure, endless litigation would be disruptive if every single business started getting sued. But maybe we should consider that the only reason it would be very disruptive is because we have normalized perpetual mass infection and re-infection from an extremely contagious novel virus, which in turn is going to continue killing and disabling a shit ton of people?