It has long been recognized that an employee's ability to participate vocational retraining is a significant factor that must be considered in assessing the worker's...
Kuciemba v. Victory Woodworks, Inc.: Employer Does Not Owe a Duty of Care to Prevent the Spread of COVID-19 to Employees' Household Members
Employees have the right to file workers' compensation claims when they contract COVID-19 as a result of their employment. Workers' compensation is the exclusive remedy for an employee's COVID-19 claim.
Generally, the exclusive remedy doctrine bars not only civil claims against an employer by an injured worker, but also extends to claims brought by all others that are collateral to or derivative of the employee's injury. This is known as the derivative injury rule.
Dependents and other persons cannot bring civil claims that are derivative of an employee's work-related injuries. For example, family members cannot bring civil claims for intentional infliction of emotional distress, loss of consortium or wrongful death that are based on the injury or death of an employee. Only workers' compensation benefits are payable to the injured worker; death benefits are payable to the dependents in the event of a worker's death.
Family members, however, may file civil claims against an employer for their own injuries that are logically and legally independent of an employee's injuries. (Snyder v. Michael's Stores, Inc. (1997) 62 CCC 1351). In See's Candies, Inc. v. Superior Court of Los Angeles County (2021) 87 CCC 21, the Court of Appeal held that the derivative injury rule did not shield an employer from civil liability when an employee contracted COVID-19 at work, and then infected her husband, who died from the illness. The court, however, did not address whether the defendants owed a duty of care to nonemployees infected with COVID-19 as a result of an employee contracting the disease. It expressed no opinion on that issue except to state that it would be worthy of exploration.[1]
On July 6, 2023, in the case of Kuciemba v. Victory Woodworks, Inc., the California Supreme Court agreed that if an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, the derivative injury rule does not bar the spouse's negligence claim against the employer. More significantly, it 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.
FACTS OF THE CASE
In Kuciemba, an employee was working at a construction site. Two months later, without taking precautions required by a county health order, the employer transferred a group of workers to the site from another location where they might have been exposed to the virus. The employee became infected with COVID-19 after being required to work in close contact with the new workers. The employee carried the virus home and transmitted it to his wife, resulting in her hospitalization for several weeks. At one point, she was kept alive on a respirator.
The employee and his wife sued the employer in civil court for her injury. She asserted claims for negligence, negligence per se, premises liability and public nuisance. The employee asserted a claim for loss of consortium. They alleged that the employer created a risk of harm by violating a county health order designed to limit the spread of COVID-19.
The case was removed to federal court, and the 9th U.S. Circuit Court of Appeals, pursuant to rule 8.548(b)(1) of the California Rules of Court, requested that the California Supreme Court address these issues: (1) If an employee contracts COVID-19 at his or her workplace and brings the virus home, does California's derivative injury doctrine bar the spouse's claim against the employer? and (2) Under California law, does an employer owe a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19?
THE COURT'S DECISION
The California Supreme Court first held that the derivative injury doctrine did not bar the spouse's claim against the employer. It explained that for the purposes of the derivative injury rule, the pertinent question was not whether an employee’s work-related injury was a “but for” link leading to the wife's infection, it was whether the wife's claim was logically or “legally dependent” on that employee's injury. It concluded that because the wife's negligence claim did not require that she allege or prove that her husband suffered any injury, it was not barred by the derivative injury rule.
The Supreme Court's assessment as to whether the employer owed a duty of care to the wife was much more difficult. The court performed a multifactored analysis and found that several factors weighed in favor of finding a duty of care. Specifically, it believed that it was foreseeable that an employee who is exposed to COVID-19 through his employer's negligence would pass the virus to a household member. It also believed that the policy factor of moral blame favored finding a duty of care because employers have superior knowledge about infection outbreaks in their workforce and have a superior ability to control the overall workplace environment to prevent infections.
Nevertheless, the Supreme Court concluded that recognizing a duty of care to nonemployees in this situation would impose an intolerable burden on employers and society in contravention of public policy. It explained that employers could not fully control the risk of infection and 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." It also stated, "For businesses regarded as essential and projects that serve the social welfare, slowed operations or shutdowns could be particularly detrimental."
In addition, the Supreme Court believed that finding a duty to prevent COVID-19 infections in household members would place significant burdens on the judicial system. It stated: "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." It added that "... the dramatic expansion of liability [the] plaintiffs’ suit envisions has the potential to destroy businesses and curtail, if not outright end, the provision of essential public services." So, based on the intolerable burden on employers and society, the Supreme Court concluded that an employer does not owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members.
ANALYSIS OF THE DECISION
Kuciemba prevents an employee's household members from suing an employer for a take-home COVID-19 claim, even if the employee contracted and spread COVID-19 to the family member due to the employer's negligence. This decision not only significantly limits the number of claims that may be brought against an employer for diseases related to COVID-19, it also limits their scope.
Employees are limited to pursuing workers' compensation claims for work-related COVID-19 claims, and are limited to the remedies available in the workers' compensation system. If, however, the Supreme Court had determined that employers owed a duty of care to prevent the spread of COVID-19 to household members, they would have been entitled to pursue their claims in civil court. An award of civil damages can include pain and suffering, lost wages and punitive damages. So, household members potentially could have recovered more against an employer than employees could.
The California Supreme Court recognized the perils for both employers and the judicial system if it opened the door to household members pursuing claims against employers for take-home COVID-19 claims. Although the COVID-19 state of emergency in California has ended, the Supreme Court was also concerned with what its decision could mean in the future, stating that "... if a precedent for duty is set in regard to COVID-19, the anticipated costs of prevention, and liability, might cause some essential service providers to shut down if a new pandemic hits." That is, if employers who provide essential services knew they could be liable for take-home COVID-19 claims, they could be reluctant to provide those services in the future.
Obviously, Kuciemba will be celebrated by employers in California. At the same time, it will be very disappointing for households with family members who suffered serious illnesses or death due to a take-home COVID-19 claim, no matter how negligent the employer was. For further discussion on the derivative injury rule, see Sullivan on Comp Section 2.30 Civil Claim by Dependent and Other Third Party.
The Nunes decision is available on the DIR website at: https://www.dir.ca.gov/wcab/EnBancdecisions2023/Nunes-Grace.pdf. For further discussion regarding the use of vocational experts, see Sullivan on Comp Section 10.19 Rebutting Schedule Under Ogilvie. For further discussion of apportionment under LC 4663, see SOC Section 10.34 Apportionment –– Pre-Existing Disease or Condition.
- For a detailed discussion on this case, see the article published by "Sullivan on Comp," Dec. 23, 2021, Derivative Injury Rule Does Not Shield Employers from Civil Claim for Family Member's Death from COVID-19.