California Rejects Employer Liability for “Take-Home” COVID-19

The court’s decision in Kuciemba v. Victory Woodworks, Inc. held that an employer cannot be held liable for alleged negligence in this situation, because an employer does not owe a duty of care to prevent the spread of COVID-19 among employees’ household members. Although viewing it as “foreseeable” that an employer’s negligence can allow the spread of COVID-19 to household members, the court concluded that “recognizing a duty of care to nonemployees in this context would impose an intolerable burden on employers and society in contravention of public policy.”

A Case of COVID-19 Allegedly Brought Home

Victory Woodworks involved an employee who worked at a construction site in San Francisco. According to the lawsuit, in 2020, in violation of local heath orders, the employer allegedly transferred employees to the site from another location where they were exposed to COVID-19. The employee then allegedly became infected, carrying the virus home to his wife. She was hospitalized for several weeks, including on a respirator.

The employee’s wife sued the employer for negligence, negligence per se, and premises liability, while he sued for loss of consortium. The employer removed the case to federal court, which dismissed the lawsuit. The plaintiffs appealed. Given the unresolved legal issues, the US Ninth Circuit Court of Appeals certified two questions to the California Supreme Court, asking the state court to answer them under state law. The California Supreme Court agreed to answer two questions: (1) if an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, does the California Workers’ Compensation Act (Labor Code § 3200 et seq.) bar the spouse’s negligence claim against the employer; and (2) does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members? It answered “no” to both questions.

No Worker’s Compensation Exclusivity Bar

On the first issue, the court considered whether the “exclusive remedy” of worker’s compensation benefits bars a tort claim by an employee’s household member in this situation. Initially, the argument may seem odd, because worker’s compensation benefits typically compensate only employees for injuries or illnesses arising in the course or scope of employment. A member of an employee’s household neither works for the employer, nor would become injured or ill while working for the employer.

However, California allows a non-employee to recover benefits through worker’s compensation if the claim is “collateral to or derivative of” the employee’s workplace injury. If so, worker’s compensation is the non-employee’s exclusive remedy, just as it is for an employee’s on-the-job injury or illness. Some examples include claims by heirs for a death benefit, loss of consortium, and negligent infliction of emotional distress for witnessing an injury.

The California Supreme Court has held that “something more than factual, or ‘but for,’ causation is necessary to give rise to the exclusivity bar,” with worker’s compensation exclusively applying only when a claim requires proof of an employee’s injury for a non-employee to recover. Thus, on the other hand, a claim for an employee’s own independent injury, but not legally dependent on the employee’s injury, is not barred by worker’s compensation exclusivity – even if it is from the employer’s same allegedly negligent conduct.

The court acknowledged that determining the scope of worker’s compensation exclusivity “can be analytically challenging.” With “take-home” COVID-19 infection, the court concluded that worker’s compensation does not bar a non-employee’s tort claim for negligence. It is an independent claim for that person’s own illness and does not depend on whether the employee became sick. While the husband’s “infection may have been a necessary factual step in the causal chain that led to” the wife’s illness, “it is not necessary” for the wife to prove injury to her husband to support her own negligence claim. Rather, the wife need only show that her husband was exposed to the virus at work and carried it home to her, not that her husband developed COVID-19 or suffered any injury. Thus, because any negligence claim for “take-home” COVID-19 “is not legally or logically dependent” on any actual injury to the employee, worker’s compensation exclusivity does not bar a non-employee’s claim.

But No Recovery for Negligence Claim Allowed

Still, even if worker’s compensation exclusivity does not bar a lawsuit for alleged “take-home” COVID-19, the California Supreme Court nonetheless concluded that a household member cannot recover against the employer on a tort claim for negligence.

California imposes a general duty of care, but with limits. As the court noted, courts recognize exceptions for entire categories of cases “when supported by compelling policy considerations.” It concluded that, “although the transmission of COVID-19 to household members is a foreseeable consequence of an employer’s failure to take adequate precautions against the virus in the workplace, policy considerations ultimately require an exception to the general duty of care in this context.”

With foreseeability, the court recognized that, in 2020, the risks of the “highly contagious and potentially deadly” COVID-19 virus had been “widely publicized.” Various health orders required employers allowed to continue operations to follow specific health and safety precautions. The court thus reasoned that it was “reasonably foreseeable” to employers that their failure to take adequate precautions against COVID-19 could result in its transmission to employees’ households.

Despite this foreseeability, the court held that policy considerations preclude imposing a duty on employers. It acknowledged that imposing a duty beyond the workplace might enhance employer vigilance, but “there is only so much an employer can do.” It recognized that employers “cannot fully control the risk of infection” because many precautions “depend upon the compliance of individual employees. Employers have little to no control over the safety precautions taken by employees or their household members outside the workplace. Nor can they control whether a given employee will be aware of, or report, disease exposure.”

The ramifications of imposing tort liability weighed heavily against recognizing a duty of care for third parties. The court saw a possibility that it “could lead some employers to close down, or to impose stringent workplace restrictions that significantly slow the pace of work.” The economic impact “could be substantial” and “difficult to forecast.” For “essential” businesses or “projects that serve the social welfare,” the court forecast that “slowed operations or shutdowns could be particularly detrimental.”

According to the court, imposing a duty on employers to prevent COVID-19 transmission to household members “has the potential to alter employers’ behavior in ways that are harmful to society.” Again, “[b]ecause it is impossible to eliminate the risk of infection, even with perfect implementation of best practices, the prospect of liability for infections outside the workplace could encourage employers to adopt precautions that unduly slow the delivery of essential services to the public,” or “cause some essential service providers to shut down if a new pandemic hits.” In addition to “dire financial consequences” for employers, the court determined that such negative results “cannot be ignored.”

The court also sought to protect against “a potential litigation explosion.” Citing a number of problems that “take-home” COVID-19 cases would pose, the court foresaw a “burden on the courts posed by a flood of complex cases that cannot be resolved in the early stages of litigation would be daunting.”

Because of these considerations, the court held that the burdens and consequences of allows “take-home” COVID-19 lawsuits weighed against imposing a duty on employers. In sum, it concluded that “the significant and unpredictable burden that recognizing a duty of care would

impose on California businesses, the court system, and the community at large counsels in favor of an exception” to the general duty of care. Imposing a duty to each employee’s household members “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.” While foreseeable that employees will carry the virus home to household members, the court emphasized that “the dramatic expansion of liability plaintiffs’ suit envisions has the potential to destroy businesses and curtail, if not outright end, the provision of essential public services.”

Employer Takeaways

Victory Woodworks is a significant decision, and an important win for employers. It puts an end to tort lawsuits against employers for “take-home” COVID-19. The court cautioned that it only addressed the question of employees transmitting COVID-19 to household members, without expressing a view on how other situations involving secondary transmission might be decided. The court further noted that social conditions and the virus “have evolved a great deal since the start of the pandemic,” with further changes possible. Thus, it added that “the calculus might well be different in the future.”

While issues involving COVID-19 have diminished, COVID-19 still remains a fact of life in employment and other settings. Last year, for worker’s compensation claims, Assembly Bill 1751 extended, until January 1, 2024, the rebuttable presumptions that an employee’s COVID-19 infection arose from employment. Typically, an employee has the burden of proof on a worker’s compensation claim. The reversal of that burden makes it all the more important that an employer cooperates in a timely manner with an insurer or administrator in defending against a disputed worker’s compensation claim, including providing any available evidence of non-employment causation.

California employers also still must comply with Cal/OSHA’s COVID-19 Prevention Non-Emergency Regulation. Our earlier alert on that standard is available here. In addition, last year, Assembly Bill 2693 extended California’s requirements that employers notify employees about COVID-19 exposure until January 1, 2024. Now, however, employers can post a notice for 15 days, instead of providing individual notices.