Employers win in "take-home" COVID era

In California, following Kuciemba, the law on “take home COVID” has been settled: Employers are not liable when COVID-19 spreads from the workplace to their employees’ households. The exclusive remedy doctrine (and its progeny) is rooted in the 1917 California Workers’ Compensation Act, which shields employers from civil liability, in exchange for workers’ compensation liability for industrial injury or death without regard for fault. The exclusive remedy doctrine also extends to third-party claims linked to the employee’s injury, known as the derivative injury doctrine.

The derivative injury doctrine typically covers claims like an employee’s spouse seeking compensation for loss of service or consortium and emotional distress claims by family members witnessing the employee’s injuries. However, liability can extend beyond these typical claims, as revealed in Snyder v. Michael’s Stores, Inc. In that case, an employee’s daughter was allowed to bring a civil claim against her mother’s employer for injuries sustained from toxic carbon monoxide exposure at the workplace, while in utero. Similarly, the court of Kesner v. Superior Court of Alameda County allowed an employee’s family members to bring a civil claim when they were exposed to asbestos fibers on the employee’s clothing brought home from work. Notably, the Kesner court found that the family member’s injuries were not derivative of an injury to the employee, but rather caused by the asbestos which the employee brought home on his jacket.

In 2022, the California Supreme Court examined its first “take-home COVID” case, See’s Candies, Inc. v. Superior Court. See’s involved an employee who contracted COVID-19 at work and transmitted it to her husband during quarantine, leading to his death. The court found parallels with the Snyder case, asserting that a “take-home COVID” scenario is akin to a mother passing on toxic substances to her unborn child because an employee could pass COVID to a third-party, without ever experiencing symptoms themselves. This is conceptually analogous to a mother breathing in a poisonous gas and conveying it to her unborn child. The See’s Court, however, deferred its ruling based on the derivative injury doctrine until July 2023, after the issue of whether an employer owes a duty of care to prevent the spread of COVID-19 to third-parties was decided in the case of Kuciemba v. Victory Woodworks, Inc.

Kuciemba presented similar circumstances to See’s. Corby Kuciemba contracted severe COVID-19 from her husband, Robert Kuciemba, an employee of Victory Woodworks. They claimed the employer’s negligent response to the pandemic led to their injuries. The California Supreme Court addressed two pivotal questions:

1. If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, does the California Workers’ Compensation Act bar the spouse’s negligence claim against the employer?

2. Does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members?

Using Kesner, Snyder, and See’s as precedents, the Court ruled that the derivative injury doctrine does not bar a spouse’s negligence claim against the employer. In addressing the question of “legal dependence,” the Court reasoned that because the spouse does not need to prove that the employee actually fell ill, the claim is not derivative. In other words, Corby Kuciemba would still have a claim if Robert Kuciemba merely served as an intermediary vessel who passed the germs along to his spouse Corby, without ever falling ill himself. However, the analysis for the duty of care issue was more intricate. The Court reasoned that while a virus outbreak is foreseeable, and the employer holds a superior position when it comes to identifying and implementing safety measures to prevent outbreaks, the potentially detrimental consequences of holding employers responsible for third-party COVID cases could slow essential business operations and open the floodgates to litigation. In light of public policy considerations, the Court held that an employer does not owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members.

The Court acknowledged that the situation with COVID-19 is evolving, and the calculus might change in the future. Considerations may include, but not be limited to, the following: Will imposing a duty of care change in the future if/when COVID becomes a thing of the past? As the virus mutates and the volume and severity of infections fluctuates, will the Court’s public policy analysis shift in favor of employees? How will the Court address future illnesses and/or pandemics?

Kuciemba v. Victory Woodworks, Inc. clarifies the exclusivity of workers’ compensation claims in “take-home COVID” cases and highlights the balance between protecting public health and the potential economic repercussions. As the world continues to grapple with the pandemic and its uncertainties, the legal landscape around workplace-related illnesses remains in flux, requiring vigilance and adaptability from employers. While the pandemic may be over, COVID-19 remains a prevalent illness, so employers should continue to adhere to public health mandates, adhere to Cal/OSHA guidelines, and maintain their COVID-19 Prevention Procedures to maintain a safe and healthy workplace.