A federal judge is weighing what she called a first-of-its-kind lawsuit that would hold an employer responsible for a worker’s spouse getting sick with COVID-19.

Update: Suit Tossed. See “Workers Comp Remedy Bars Wife’s COVID Suit vs. Husband’s Employer.

Plenty of families have sued businesses, from retailers to meatpacking plants, claiming that unsafe workspaces during the pandemic caused a worker’s sickness. But Corby Kuciemba and her husband Robert Kuciemba are going an extra step by blaming his employer, Victory Woodworks Inc., for spreading the illness into his household.

“This is the first time someone is making the claim that if you have COVID and you live with someone who has a job, you can sue the employer for potentially having given you COVID,” said Bill Bogdan, a lawyer for the company.

Because his injury is addressed by workers compensation, her husband is precluded under the law from suing the company directly.

U.S. District Judge Maxine M. Chesney’s decision about whether to let the case proceed will serve as a barometer for similar suits throughout the nation.

Chesney signaled at a hearing last week that she’ll probably throw the case out because Corby Kuciemba’s claim is “wholly dependent” upon her husband getting sick at work. Because his injury is addressed by worker’s compensation, Robert is precluded under the law from suing the company directly.

It was unclear if Chesney might go further and decide whether an employer’s duty to provide a safe workspace for employees—which includes protecting workers from exposure to contagious illnesses—extends to other family members.

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The couple alleges that Victory Woodworks violated local and federal virus safety guidelines when it moved workers from one site to another in the San Francisco region. The company’s failure to take basic precautions caused Robert Kuciemba to contract the virus and unknowingly bring it home and infect his wife, according to the complaint, which states that both husband and wife required extended hospital stays and suffer from after-effects.

Mark Venardi, a lawyer for the couple, drew an analogy to a worker who inadvertently brings home asbestos fibers from his workplace that make his wife ill — a situation in which California law holds the employer responsible.

“There is no material difference between the spouse bringing home a virus instead of a fiber,” Venardi said.

Martin Zurada, another attorney for the plaintiffs, said that even if the husband didn’t get sick with COVID—making worker’s compensation irrelevant — the wife still has an “independent” claim after she spent weeks on a ventilator.

The attorneys say they can show the couple took extreme precautions to avoid COVID exposure. While that’s not an issue for the judge now, if the case proceeds they’ll have to prove that Robert contracted the virus at his workplace—a difficult hurdle for all COVID suits.

Bogdan said the judge shouldn’t “suspend disbelief when the facts are beyond reason.”

The allegations, he said, have to be “tethered to this planet.”

The case is Kuciemba v Victory Woodworks, originally filed in California –state Superior Court, moved to U.S. District Court.