No Employer Liability for the COVID-19 Death of a Family Member

Elizabeth Chilcoat

If an employee contracts COVID-19 at work and transmits the illness to a spouse, who then dies, is the employer liable?  In Estate of William Madden v. Southwest Airlines, Co., the U.S. District Court for the District of Maryland recently said, “No.”

Carol Madden was a Southwest flight attendant.  In order to maintain her credentials, Mrs. Madden was required to attend in-person training in July 2020.  Mrs. Madden contracted COVID-19 after the training, and attributed the infection to Southwest’s handling, or lack thereof, of COVID-19 mitigation efforts at the training.  Mrs. Madden believes she transmitted COVID-19 to her husband, who died of the virus just two weeks after the training was held.

Mr. Madden’s estate and Ms. Madden sued Southwest alleging that Southwest was negligent in conducting the in-person training.  They alleged Southwest breached its duty of care, causing Mr. Madden’s death.  Among the things they alleged Southwest should have, but did not, do were: 1) screen attendees and trainers for COVID-19, 2) exclude participants who had been exposed to COVID-19, 3) mandate masking, 4) follow social distancing rules, or 5) regularly sanitize shared equipment and surfaces.  In other words, she alleged Southwest did not follow public health authority guidance regarding how to reduce the spread of COVID-19.  However, the Court in Madden provided a good reminder that CDC guidance, while important, is not the “law.”

Rather, Madden relied on a theory of negligence.  A claim for negligence arises if the defendant owed the plaintiff a duty of care, which the defendant breached, proximately and actually causing the plaintiff harm.  Applying Maryland law, the court held that Southwest did not owe Mr. Madden a duty of care.  While troubled by the foreseeability of Mr. Madden’s illness and the moral blameworthiness of Southwest’s alleged failure to take precautions in the midst of a global pandemic, the Court ultimately concluded that imposing a duty to protect third parties who come into “close contact” with its employees from COVID-19 was untenable.  The potential pool of plaintiffs would expand dramatically, and defendants would have no way to know where their duty of care began or ended.  Said differently, Southwest did not have the sort of relationship to Mr. Madden that typically gives rise to a duty of care: it did not control Mr. Madden, it did not have a special relationship to him, and no statute or ordinance governed its relationship with him. 

Employers can be cautiously optimistic, but should be aware of the limitations of the court’s decision.  The court’s decision was based on Maryland law, so it may be inapplicable elsewhere.  It did not consider whether workers’ compensation would limit an employer’s liability for an employee’s COVID-related death.  It did not ask the question “what if the training weren’t required by federal law.” Nor did it weigh in on the viability of other claims an employee might try under other circumstance when an employer is alleged to have disregarded COVID-19 related “best practices.”  Indeed, we may hear more from Mrs. Madden herself.  The court dismissed the claims without prejudice, giving her an opportunity to amend the claims to better address the issue of duty or assert new theories for damages.  The pandemic is not over and, while this case is a good sign for employers generally, employers who elect to ignore CDC or other public health authority guidance do so at their own risk.