On July 6, 2023, the California Supreme Court held in Kuciemba v. Victory Woodworks that when an employee contracts COVID-19 at work and then transmits the virus to their spouse, the non-employee spouse’s claim against the employer is not barred by the state’s workers’ compensation system’s derivative-injury doctrine. The Court, however, also held that an employer does not owe a duty of care to the households of employees to prevent the spread of COVID-19.
Writing for the majority, Justice Corrigan concluded that while third-party claims that are “legally dependent on the employee’s injury” are barred by the derivative-injury doctrine, such as loss-of-consortium or wrongful death claims, the derivative-injury doctrine does not bar “a family member’s claim for her own independent injury” that was “caused by the same negligent conduct of the employer.” A third party’s claim is barred by the derivative-injury only if they must “prove injury to the employee as at least part of a legal element” of their claim.
Justice Corrigan also explained in great detail why the Court concluded that employers do not owe a duty of care to the households of employees to prevent the spread of COVID-19. The Court held that the imposition of such a duty would create a “significant and unpredictable burden” on “businesses, the court system, and the community at large.” The Court explained that while foreseeability factors and moral blame may weigh in favor of finding such a duty, it could cause employers to alter their behavior in ways that are harmful to society because it is impossible to eliminate the risk of infection and the risk of liability for infections outside the workplace could encourage employers to implement safeguards that impede the delivery of essential services to the public. Thus, the Court concluded that in this instance “the consequences of a negligent act must be limited in order to avoid an intolerable burden on society.”
The case involved Robert Kuciemba who contracted COVID-19 while he worked for the construction company Victory Woodworks in San Francisco. Robert claimed that he was infected with the virus by a co-worker who Victory transferred from another job site where there were many infected workers. Robert then transmitted the virus to his wife Corey, which resulted in her hospitalization.
The Kuciembas initiated suit in California courts, but Victory removed the case to federal court. The district court dismissed the complaint ruling Corey’s claim was barred by the state’s workers’ compensation derivative-injury doctrine and that Victory had no duty of care to prevent the spread of COVID-19 to Robert’s family members. The Kuciembas appealed to the Ninth Circuit which then certified both issues to the California Supreme Court.
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Colin J. Tanner is a founding partner of the firm, Chair of the Labor & Employment Practice Group and Chair of the Personnel Committee. Mr. Tanner advises the firm’s clients regarding their labor and employment practices, including addressing issues of preventive liability, insurance coverage, and risk management. Mr. Tanner has been admitted to practice before most of the courts and adm...