On July 6, 2023, the California Supreme Court issued a significant ruling related to “take-home-COVID-19” — and it’s one that can be celebrated by all businesses and employers throughout the state.
In short, employers don’t owe a duty of care to prevent the spread of COVID-19 to its employees’ household members.
“We are grateful the Court recognized that holding employers liable for nonemployees who contracted COVID-19 would be a significant expansion of tort law that would have forced employers to bear the responsibility of subsidizing the health care costs of the pandemic,” said CalChamber Corporate Counsel Nicole Wasylkiw. “The Court clearly understood that, given the public policy considerations in play during the pandemic, employers should not have to absorb the considerable costs and liability that were at issue in the case.”
In Kuciemba v. Victory Woodworks, Inc., Mr. Robert Kuciemba worked at a construction site in San Francisco for Defendant Victory Woodworks, Inc. (Victory). After working there for a couple of months, and without taking precautions required by the county’s health order, a group of workers was transferred to Mr. Kuciemba’s site from another location where they may have been exposed to COVID-19. Mr. Kuciemba was required to work in close contact with those workers and became infected. He then carried the virus home and transmitted it to his wife, Mrs. Corby Kuciemba, who was hospitalized for several weeks.
The Kuciembas filed suit against the employer for negligence among other claims, asserting that it caused Mrs. Kuciemba’s injuries by failing to follow the local public health order in effect at the time.
The lower district court dismissed the Kuciembas’ case in May 2021, and they appealed to the Ninth Circuit Court of Appeals. After briefing concluded but the case was still pending on appeal, the Second District Court of Appeal on nearly identical facts held in December 2021 that the derivative injury rule does not bar claims brought by an employee’s spouse.
The case, See’s Candies, Inc. et al. v. Superior Court of California for the County of Los Angeles, however, did not address whether the employers in that case owed a duty of care or whether plaintiffs could demonstrate that either of them contracted COVID-19 because of any negligence in the defendant’s workplace.
Recognizing the widespread public policy implications and the absence of controlling precedent, in April 2022, the Ninth Circuit Court of appeal certified the following two questions to be addressed by the California Supreme Court:
- If an employee contracts COVID-19 at their workplace and brings the virus home to their spouse, does the derivative injury doctrine bar a spouse’s claim against the employer?
- Does an employer owe a duty of care to prevent the spread of COVID-19 to an employee’s household members?
California Supreme Court Issues Its Ruling
On July 6, 2023, the California Supreme Court answered no to both of those questions.
In answering the first question, the Supreme Court aligned with the 2021 See’s Candies ruling that the workers’ compensation exclusivity doctrine does not apply in this type of fact pattern. As previously mentioned, the facts in See’s are almost identical to those in the Kuciembas’ case: A wife contracted COVID-19 at work due the company’s poor safety practices and subsequently infected her husband, who died from the illness.
In answering the second question, the Court looked at Civil Code section 1714, which establishes a general duty of care, and noted that although there may be a “default rule of duty,” there may be appropriate exceptions when supported by compelling policy considerations. The Court looked at the Rowland factors — a multifactor test articulated in 1968’s Rowland v. Christian that has been used by the courts to decide whether limiting such a duty would be justified.
The Rowland factors fall into two categories:
- Foreseeability (i.e., what was known at the time of the alleged negligence); and
- Public policy, which the Court described as more “forward-looking.”
While the Court did find a household member contracting COVID-19 as a foreseeable consequence of an employer failing to take adequate workplace precautions against the virus, in this context, “policy considerations ultimately require an exception to the general duty.”
Recognizing that public policy strongly favors compliance with health orders to prevent the spread of COVID-19 — and that imposing a duty of care beyond the workplace could enhance employer vigilance that context — the Court also recognized that “there is only so much an employer can do.” The Court noted that several factors outside an employer’s control, such as safety precautions taken outside of the workplace by employees and their household members. Additionally, even if an employer fully complies with all health and safety protocols, it’s impossible to eliminate the risk of infection.
And unlike the “take-home-asbestos” cases discussed as a comparison by both sides, which involved a much smaller pool of potential plaintiffs, extending a duty to prevent secondary COVID-19 infections “would extend to all workplaces, making every employer in California a potential defendant.” Also noted was the “potential litigation explosion” and the significant burdens that would be placed on not only the judicial system, but also the community overall.
Thankfully, the Court appreciated the significant ramifications of expanding the law in such a way.
While the Court acknowledged the foreseeability factors (and the policy factor of moral blame) largely tilted in favor of finding a duty of care, the policy factors related to the burdens on defendants and the community weighed against imposing a duty.
“Although it is foreseeable that an employer’s negligence in permitting workplace spread of COVID-19 will cause members of employees’ households to contract the disease, recognizing a duty of care to nonemployees in this context would impose an intolerable burden on employers and society in contravention of public policy,” the Court stated in its opinion. “These and other policy considerations lead us to conclude that employers do not owe a tort-based duty to nonemployees to prevent the spread of COVID-19.”
Bianca N. Saad, Vice President of Labor and Employment for Content, Training and Advice, CalChamber