You have just been informed that an employee who appears to have contracted COVID-19 through contact with your workplace brought the virus home and now his spouse, who is in a high risk category, has contracted the virus and is in the hospital. As an employer, do you face potential liability for spouse’s illness?
More than two dozen so-called “take home” COVID-19 lawsuits have been filed across the country, including against some of the largest employers in the United States. This alarming pattern has prompted trade associations to warn employers of possible COVID-related lawsuits being filed not just by workers’ family and friends, but by anyone infected by them, creating a seemingly never-ending Chain of liability for employers is created. Some states have enacted laws protecting employers from such lawsuits, but where they don’t, the legal theories and procedural avenues under which these lawsuits have been brought — including some that have been filed in state courts, some in federal courts, and other claims — vary within the workers’ compensation system.
The issue is currently being tested in California, where the US Circuit Court of Appeals for the Ninth Circuit recently admitted questions to the California Supreme Court for guidance on the state’s laws. The case, Kuciemba v Victory Woodworks, Inc., came after Mr Kuciemba was allegedly exposed to COVID-19 through his work at one of his employer’s construction sites. According to the Kuciembas, Victory knowingly transferred workers from an infected job site to the job site where Mr. Kuciemba was deployed without following safety procedures mandated by the San Francisco Health Order. Forced to work in close contact with these employees, he soon contracted COVID-19, which he brought home. His wife is over 65 and at high risk of COVID-19 and the family had been careful to limit their exposure to the virus, with the exception of Mr Kuciemba, who went to work. Ms Kuciemba subsequently tested positive for the disease and was hospitalized for over a month after developing severe symptoms. The Kuciembas filed a lawsuit alleging that Victory caused injuries to Ms. Kuciembas by violating health regulations and negligently allowed COVID-19 to spread from his workplace to her household.
The lower court dismissed the case, which was then appealed to the Federal Circuit. After hearing the argument, the court asked the California Supreme Court to answer two questions of state law. First, whether Ms Kuciemba’s illness was an “injury” “derived” from Mr Kuciemba’s work-related injury and therefore Ms Kuciemba’s claims would come under the exclusive jurisdiction of the Workers’ Compensation Act (“WCA”). ; and second, assuming the WCA is not the exclusive remedy as to whether the employer had a duty to employees’ households to exercise ordinary care to prevent the spread of COVID-19. Both questions were not answered unequivocally by the California Supreme Court, although, as noted by the Federal Circuit Court of Appeals, in a somewhat analogous situation, California courts have allowed lawsuits against employers who negligently allowed their employees to carry asbestos fibers home to their families.
During Kuciemba case pending, a California appeals court in another case, See Candy v. Superior Court, ruled that the Derivative Injury Doctrine does not preclude COVID-related claims by third parties. Under a similar pattern of facts, the court allowed the negligence case to proceed, but found that the plaintiff would still have to prove that the employer owed a duty of care to non-employees who were infected with COVID-19 because an employee contracted the Virus infected had work. Recognizing that an analysis of this duty “appear[s] worth investigating,” the state appeals court said, the analysis would include an assessment of “public policy concerns that may warrant excluding certain types of plaintiffs or violations of facilitation.” The California Supreme Court declined a review Please refer case, meaning it still holds up.
The California Supreme Court has not yet announced whether it will have discretionary answers to the Ninth Circuit Court’s certified questions in the Kuciembas case. Meanwhile, California employers cannot automatically rely on the exclusive remedial system provided under the workers’ compensation system to cover these claims and are not necessarily protected from COVID-19 lawsuits brought by workers’ family members (and possibly others). be submitted. But even when employers owe their employees’ families a duty of care, affected employees still have to show that the employer’s negligence caused the illness and that the virus was not transmitted from another source – a tough requirement for communicable viruses like COVID-19. In the meantime, however, it is the responsibility of all California employers to continue to comply with health and safety measures to prevent the spread of COVID-19 and to respond quickly and appropriately in the event of a workplace outbreak of COVID-19.
© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XII, Number 145
