MICHAEL SULLIVAN & ASSOCIATES BLOG

California employers scored a victory this week, as both the CA Supreme Court and US Court of Appeals for the 9th Circuit confirmed that employers owe no duty of care to prevent the spread of COVID to members of their employees’ households. The facts of the case, Kuciemba v. Victory Woodworks, Inc., were actually super interesting!

As a furniture and construction company with jobsites all over California, Victory was declared an essential business during the COVID lockdowns of 2020. While the lockdown was ongoing, several employees at one of its jobsites contracted COVID. Instead of requiring its non-infected employees at that site to quarantine, Victory reassigned them to other jobsites, including Mr. Kuciemba’s, in violation of the health orders in place at the time. Not surprisingly, one of the reassigned employees gave Mr. Kuciemba COVID, and in turn, Mr. Kuciemba gave it to his wife. While she was fortunate enough to survive her bout with COVID, she was hospitalized for a considerable time, during part of which she required a respirator to breathe. The Kuciembas sued Victory, claiming (among other things) that Victory caused Mrs. Kuciemba’s injuries by negligently failing to protect its employees from the spread of COVID.

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.

California Gov. Gavin Newsom has ended the COVID-19 state of emergency in California. While it was in effect, however, the workers' compensation system was subject to numerous changes and disruptions. The Workers' Compensation Appeals Board (WCAB) moved toward remote hearings, and Gov. Newsom issued an executive order extending specified time limits established in the Labor Code and administrative regulations.

On March 22, 2023, the Workers' Compensation Appeals Board (WCAB) issued its ninth, and possibly final, en banc decision regarding COVID-19, “In Re: COVID-19 State of Emergency En Banc –– No. 9.” Because Governor Newsom terminated the state of emergency in response to COVID-19 as of Feb. 28, 2023, the WCAB announced that it was rescinding all remaining en banc decisions which had temporarily suspended specific WCAB Rules of Practice and Procedure, effective as of the date of the decision. Specifically, the WCAB announced the following decisions were rescinded:

On February 3, 2023, Cal/OSHA’s COVID-19 Non-Emergency Standards was approved and became effective. The Non-Emergency Standards will remain in effect until February 3, 2025, and can be found at https://www.dir.ca.gov/oshsb/documents/COVID-19-Prevention-Non-Emergency-apprvdtxt-oal.pdf.

The Non-Emergency Standards relax several previously mandatory requirements and have modified some important definitions.

The following are changes employers need to be aware of and implement.

On September 29, 2022, California’s Governor signed Assembly Bill (AB) 2693, which amends and extends the COVID-19 workplace notice requirements stipulated in AB 685 until January 1, 2024. AB 2693 can be found here.

The existing law, AB 685, was enacted in 2020 and requires employers to provide written notice to employees who may have been exposed to COVID-19 in the workplace. The notice must be provided to all employees at the worksite within one business day and must include information regarding benefits available to employees, the company’s disinfection and safety plan, and a statement of anti-discrimination and anti-retaliation. For a full description of AB 685 see the CAL/OSHA Imposes New Notice and Reporting Obligations for COVID-19 Workplace Exposure update on Michael Sullivan & Associates' free eBook, Navigating COVID-19: a Legal Guide for Employers. Originally, this notification requirement was set to expire on January 1, 2023. AB 2693 extends this reporting requirement to January 1, 2024, and gives employers another option for complying with the notification requirements.

San Francisco voters passed Proposition G, a new public health emergency leave ordinance (PHELO) which takes effect on October 1, 2022. A copy of the proposition can be found here.

Leave is available only during a public health emergency, as defined by law. The public health emergency can be one declared by the federal or state government or declared locally by the City of San Francisco.

On September 29, 2022, Governor Gavin Newsom signed Assembly Bill (AB) 152, extending the obligation of employers with 26 or more employees to provide COVID-19 supplemental paid sick leave (SPSL) through December 31, 2022. The text of AB 152 can be found here: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB152.

Importantly, the bill doesn’t require employers to provide any additional leave. When originally enacted, SPSL required covered employers to provide paid COVID-related leave through September 30, 2022. The extension of SPSL does not require employers to provide new or additional leave. Instead, the up to 80 hours of SPSL that employees could have used between January 1, 2022 and September 30, 2022 (the original expiration date) must continue to be available through December 31, 2022, and possibly slightly beyond 2022 if an employee begins a covered absence at the end of 2022 that continues, uninterrupted, into 2023.