In what can only be regarded as a big sigh of relief for employers, The California Supreme Court found that an employer does NOT owe a duty of care to prevent the spread of COVID-19 to employees’ household members. The Court recognized that a contrary holding would impose an ‘intolerable burden on employers and society’. Thus, they concluded that, “[E]mployers do not owe a tort-based duty to nonemployees to prevent the spread of COVID-19”.
This decision will undoubtedly be positively received by the entire employer community.
In another part of the decision, however, the Court ruled that the workers’ compensation laws do not prevent a spouses’ negligent claim against the employer directly where her husband brought home COVID-19 from the workplace. This rule does not conflict with the first ruling in that no duty of care is presumed to exist from the employer to the spouse. This second ruling is consistent with the first.
The general rule is that a family member’s claim for an injury derived from an employee’s workplace injury is barred by workers’ compensation exclusivity. However, a family member’s claim for their 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.
So in the Kuciemba case, if the employee’s spouse can prove she suffered an independent injury of contracting COVID-19, absent or independent from any injury to the employee, she can bring an independent tort (negligence) claim against the employer. Although the employee was considered ‘injured’ by contracting COVID-19, even if he wasn’t ‘injured’ and was simply a carrier of the virus, the spouse could bring a negligence claim because her injury was NOT legally dependent on any actual ‘injury’ by her employee husband. In paraphrasing a multi-part test, the Court concluded that, since the employer was required by governmental health mandates to screen workers, maintain social distancing, provide personal protection equipment, etc., these health mandates put employers on notice of risks of ‘take-home exposures’ and there was a “reasonable foreseeability that COVID-19 could be transmitted both at the workplace and beyond – to those individuals who came into contact with infected employees.” Thus, the employer’s failure to take adequate precautions was, in and of itself, actionable.
If, on the other hand, the spouse’s claim was solely dependent on the husband’s injury itself, then the claim could be barred by the derivative injury rule. To be excluded, there has to be a dependency on the injury itself, not just the exposure, to bar recovery to a spouse.
The distinction seems negligible, but the minor distinction has extraordinary consequences.
In an effort to bring this case result with some insight as quickly as possible, this post is shared, and attached is a copy of the entire decision here. This post is, by no means, comprehensive of all facts, rules, legal issues and conclusions. I am sure that, in the coming weeks and months, there will be an enormous amount of text, articles, blogs, seminars, etc. that will further analyze these cases. As a portion of the ruling is outside of the workers’ compensation arena, I also defer to other experts that can discuss the issue further as well.
