California Supreme Court to Consider Employer Liability for Worker’s Wife’s COVID-19

Employment Law


The U.S. Court of Appeals, Ninth Circuit, has certified two questions to the California Supreme Court about the liability of employers when an employee contracts COVID-19 at work and brings the virus home to a spouse.

Robert Kuciemba began working for Victory Woodworks in 2020, after San Francisco issued a health order allowing certain essential industries to reopen in the wake of the COVID-19 pandemic.

Robert and his wife, Corby, allege that they strictly complied with the various orders related to COVID-19, followed all recommended safety procedures and minimized their exposure to other people.

The only person in their household to have frequent contact with others was Robert, through his work at Victory.

According to the Kuciembas, Victory knowingly transferred workers from an infected construction site to Robert’s job site without following the safety procedures required by the city’s health order. Robert was forced to work in close contact with these employees, they claimed, and contracted COVID-19, which he brought home.

Corby, who is over 65 years old and at high risk for the virus, tested positive on July 16, 2020, and developed severe respiratory symptoms. She was hospitalized for more than a month and kept alive on a respirator.

The Kuciembas filed suit alleging that Victory caused Corby’s injuries by violating the health order. Victory moved to dismiss, arguing that California’s derivative injury doctrine barred the suit. The district court granted the motion and the Kuciembas appealed.

Finding no controlling precedent, the Ninth Circuit punted to the California Supreme Court.

“This appeal … presents issues of significant public importance for the State of California: the scope of an employer’s liability in tort for the spread of COVID-19, the application of the public policy exception to Cal. Civ. Code § 1714(a)’s general duty of care in the context of a pandemic, and – perhaps most sweepingly – whether California’s derivative injury doctrine applies to injuries derived in fact from an employee’s workplace injury,” the federal appellate panel wrote.

The parties disputed the scope of California’s derivative injury doctrine and whether it reached the facts of the case, the panel explained.

Victory contended that the doctrine bars all claims against an employer that flow in fact from a workplace injury suffered by an employee, while the Kuciembas took the position that the doctrine applies much more narrowly to claims that logically or legally require a plaintiff to show injury to a third party, such as claims for loss of consortium or wrongful death.

None of California’s courts have weighed in on whether public policy favors creating an exception to the duty to care for employers that negligently infect their employees’ family members with COVID-19, the panel said.

As the case presents “prime questions” for the state’s highest court to address, the Ninth Circuit certified two questions to the California Supreme Court:

  1. If an employee contracts COVID-19 at his workplace and brings the virus home to his spouse, does California’s derivative injury doctrine bar the spouse’s claim against the employer?
  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?

To read the order in Kuciemba v. Victory Woodworks, Inc., click here.

Why it matters: The case presents important questions about employer liability and the protections of the derivative injury doctrine, now to be decided by the California Supreme Court.

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