Grinberg: Employers Have No Duty to Employees' Household Member on COVID-19

Friday, July 14, 2023 | 0

The California Supreme Court issued its opinion in Kuciemba v. Victory Woodworks, essentially ruling that no duty of care exists on the part of employers to household members of employees when it comes to COVID-19. 

Gregory Grinberg

The Kuciemba case, along with its brother-from-another-mother case, Ek v. See’s Candies Inc., has been covered from time to time by this blog. Both cases essentially ask the same question: Can the employer be held liable to household members of employees when COVID-19 exposure (and, presumably, infection) occurred at the workplace and was brought home by employees to be transmitted to the household members?

Of course, the logic of this theory traces the path of Kesner v. Superior Court of Alameda County, a 2016 decision in which the California Supreme Court created a duty of care on the part of employers to household members of employees who brought asbestos home on their clothes, exposing nonemployees.

But, unlike the asbestos line of cases, the California Supreme Court rejected such a theory: “Although it is forseeable 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. 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.”

In distinguishing Kesner, the Kuciemba court reasoned that while the only likely source for asbestos exposure would have been the employer’s premises, COVID-19 was highly contagious, and infection sources would also vary depending on the level of diligence on the part of the employee.

“The line between an employer’s negligence and transmission of the virus to household members is thus not as direct as in the asbestos context,” the court said.

One key factor in the Supreme Court’s decision appears to be the policy consideration weighing against finding liability on the part of the employer. However, the court left the tort liability door slightly cracked, rather than slammed shut: “In doing so, we are mindful that social conditions surrounding COVID-19, much like the virus itself, have evolved a great deal since the start of the pandemic, and these changes are likely to continue. We acknowledge that the calculus might well be different in the future.”

So, while the current position of the California Supreme Court appears to be that no duty exists on the part of the employer to the household members of the employee to prevent COVID-19 exposure, if COVID-19 continues to plague us in five years, will some enterprising plaintiffs' attorney run the gantlet again?

Getting to the Supreme Court is expensive and time-consuming. Hopefully, the little opening left by the Kuciemba court will not be enough to prompt the plaintiffs' bar to try again. In the meantime, I will be stopping by See’s Candies to pick up some cherries in chocolate to celebrate this result.

Gregory Grinberg is managing partner of the Tobin Lucks office in Burlingame and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.