On July 6, 2023, the California Supreme Court clarified the scope of employer liability for negligence claims related to Covid-19 infections of employee household members. In Kuciemba v. Victory Woodworks, Inc., the Court answered two certified questions from the United States Court of Appeals for the Ninth Circuit and held, first, that the exclusivity provisions of the California Workers’ Compensation Act (“WCA”) do not bar a household member’s negligence claim for derivative infection. However, the Court went on to hold that, as a matter of tort law and based on public policy principles, employers do not owe a duty of care to employees’ household members to protect them against Covid-19.

Facts of the Case:

The plaintiffs in Kuciemba were a married couple, and the husband had worked for the defendant at a construction site in San Francisco. They alleged that, during the earliest days of the pandemic, the company had negligently allowed him to contract Covid-19, which he then brought home to infect his wife, resulting in her severe illness and hospitalization. The Kuciembas sued, with the wife claiming that the company’s negligence had caused her Covid-19 injuries.

The Court’s Holdings:

Addressing the novel issue of California law, the California Supreme Court first considered whether the exclusivity provisions of the WCA applied to bar the wife’s derivative negligence claim. In its first holding, the Court held that such third-party claims are only barred when they are legally dependent on the employee’s own injury—for example, a spouse’s loss-of-consortium claim deriving from a work-related injury. A spouse who asserts their own injury due to the employer’s negligence, on the other hand, is not barred by the WCA, even when their spouse’s work-related injury was the direct factual cause of their own. The WCA therefore did not bar the wife’s suit for her own Covid-19 injuries.

The Court then turned to the heart of the case: under the law of negligence, should an employer’s duty of care extend to protecting its employees’ household members from the transmission of Covid-19? Although the “general duty of care” in California is established by statute and generally extends to injuries to third parties, the Court can find exceptions to that general rule when they are supported by compelling policy considerations. Here, the Court concluded that such an exception was warranted. Citing factors such as the rapid transmission of Covid-19, the high number of potential plaintiffs, the exceptional costs such liability would impose on employers, and the enormous burden to the court system from authorizing derivative-infection suits, the Court concluded that a California employer does not owe a duty of care to prevent the spread of Covid-19 to its employees’ household members.

What this means for California Employers:

Employers can take some comfort in knowing that they should not face liability for claims from employees’ family members arising from Covid-19 infections; however, employers should know that courts may find employers liable for injuries to family members under other circumstances, since this decision is narrowly limited to the context of Covid-19.

And employers still have a number of duties related to the protection of their employees from Covid-19. On February 3, 2023, OSHA non-emergency Covid-19 prevention regulations took effect, requiring employers to provide effective Covid-19 hazard prevention training to employees and to report major outbreaks to Cal/OSHA, among other requirements. For the complete set of requirements, please refer to the Department of Industrial Relations Covid-19 Prevention Non-Emergency Regulations, which will remain in effect until February 3, 2025, except for recordkeeping subsections, which will remain in effect until February 3, 2026: https://www.dir.ca.gov/dosh/coronavirus/Non_Emergency_Regulations/.

If you have questions about how this new case will affect your business or advice about how to implement these new requirements, please contact us.

• Morgan D. Stewart (mstewart@wilsonturnerkosmo.com)
• Katie M. McCray (kmccray@wilsonturnerkosmo.com)
• Michael Kalt (mkalt@wilsonturnerkosmo.com)
• Emily J. Fox (efox@wilsonturnerkosmo.com)

Wilson Turner Kosmo’s Special Alerts are intended to update our valued clients on significant employment law developments as they occur. This should not be considered legal advice.