Answering certified questions from the Ninth U.S. Circuit Court of Appeals, the California Supreme Court found that public policy precluded holding an employer liable where an employee’s spouse suffered from COVID-19 contracted from her husband via his job.
Robert Kuciemba began working for Victory Woodworks in 2020, after San Francisco issued a health order allowing certain essential industries to reopen in the wake of the COVID-19 pandemic.
Robert and his wife, Corby, claimed that they strictly complied with the various orders related to COVID-19, followed all recommended safety procedures and minimized their exposure to other people.
The only person in their household to have frequent contact with others was Robert, through his work at Victory.
According to the Kuciembas, Victory knowingly transferred workers from an infected construction site to Robert’s job site without following the safety procedures required by the city’s health order. Robert was forced to work in close contact with those employees, they alleged, and contracted COVID-19, which he brought home.
Corby, who is over 65 years old and at high risk for the virus, tested positive and developed severe respiratory symptoms. She was hospitalized for more than a month and kept alive on a respirator.
The Kuciembas filed suit alleging that Victory caused Corby’s injuries by violating the health order. Victory moved to dismiss, arguing that California’s derivative injury doctrine barred the suit. The district court granted the motion.
On appeal, the Ninth Circuit certified two questions to the California Supreme Court.
While the state’s highest court unanimously held that the exclusivity provisions of the state’s Workers’ Compensation Act (WCA) do not bar a nonemployee’s recovery for injuries that are not legally dependent on an injury suffered by the employee, the unanimous court also found that public policy precluded holding employers liable in such a situation.
“Although it is foreseeable that an employer’s negligence in permitting workplace spread of COVID-19 will cause members of employees’ households to contract the disease, recognizing a duty of care to nonemployees in this context would impose an intolerable burden on employers and society in contravention of public policy,” the court wrote. “These and other policy considerations lead us to conclude that employers do not owe a tort-based duty to nonemployees to prevent the spread of COVID-19.”
Addressing the derivative injury doctrine, the court acknowledged that in general, workers’ compensation benefits provide the exclusive remedy for third-party claims if the asserted claims are “collateral to or derivative of” the employee’s workplace injury.
“However, a family member’s claim for her own independent injury, not legally dependent on the employee’s injury, is not barred, even if both injuries were caused by the same negligent conduct of the employer,” the court explained. “Because Corby’s negligence claim does not require that she allege or prove that Robert suffered any injury, it is not barred by the derivative injury rule.”
While the court opened the door to the potential for employer liability, it closed it when turning to the duty of care.
The court found the default rule of duty applies in the COVID-19 context where the plaintiffs have alleged that the defendant, through its own actions, created an unreasonable risk of the disease’s transmission, but further determined that an exception to the general duty of care applied.
“Public policy strongly favors compliance with health orders to prevent the spread of COVID-19,” the court wrote. “Recognizing a duty of care beyond the workplace could enhance employer vigilance in this regard. However, there is only so much an employer can do. Employers cannot fully control the risk of infection because many precautions, such as mask wearing and social distancing, depend upon the compliance of individual employees. Employers have little to no control over the safety precautions taken by employees or their household members outside the workplace. Nor can they control whether a given employee will be aware of, or report, disease exposure.
“There is also a possibility that imposing a tort duty not covered by workers’ compensation could lead some employers to close down, or to impose stringent workplace restrictions that significantly slow the pace of work. The economic impact of such changes could be substantial and is difficult to forecast.”
The court was not persuaded by the Kuciembas’ suggestion to recognize a duty of care extending only to individuals who share a household with the employee.
“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,” the court said.
In addition to financial consequences for employers and the possibility of a broader social impact, the potential litigation explosion facilitated by a duty to prevent COVID-19 infections in household members would place significant burdens on the judicial system and, ultimately, the community, the court added.
“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 court wrote. “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.
“These are the type of ‘policy considerations [that] dictate a cause of action should not be sanctioned no matter how foreseeable the risk.’ In some cases, ‘the consequences of a negligent act must be limited in order to avoid an intolerable burden on society.’ This is such a case.”
To read the opinion in Kuciemba v. Victory Woodworks, Inc., click here.
Why it matters
Employers can breathe a sigh of relief in the wake of the California Supreme Court’s decision, after the unanimous court recognized that policy considerations outweighed the need to hold employers liable for the transmission of COVID-19 to nonemployees.