Grinberg: Take-Home COVID in Play Again Before Supreme Court

Thursday, July 7, 2022 | 0

I hope you aren’t tired of hearing more about COVID-19, because there has been a new development in the Kuciemba case.

Gregory Grinberg

Although the See’s Candies case was sent back to the trial level by the Court of Appeal, with review of the remand denied by the Supreme Court, essentially the same question is to be addressed by the California Supreme Court at the request of the 9th Circuit Court of Appeal.

Back in April of this year, the 9th Circuit asked the California Supreme Court to address whether family members of employees could sue the employer directly for the COVID-19 that was brought home. If that’s a confusing setup, the simple version is this: Jack goes to work and gets exposed to COVID-19 at work. Jack comes home and passes COVID-19 on to Jill, who lives with him. Jill suffers due to the infection and wants to sue Jack’s employer for negligently exposing Jack to COVID-19, enabling him to expose Jill.

If that sounds familiar, that is the exact same path of liability as the California Supreme Court created for asbestos exposure. The question remains if COVID-19 will get the same treatment.

On June 22, the California Supreme Court granted the 9th Circuit’s request, and it looks like this issue will be addressed directly.

In light of this, I suggest employers take action now to prepare for the flood of litigation to follow. For all known industrial COVID-19 cases, documentation should be taking place of family members, dates of exposure, etc. Employers might consider proactively settling any claim that is questionable and has been denied with a Thomas finding as soon as possible, rather than letting the denial stand and the statute of limitations run.

Finally, employers should be aware that the limited exposure for a healthy employee who bounced back from a positive COVID-19 test with no more than a quarantine period might very well have family members who did not tolerate exposure quite so easily.

From anecdotal evidence, I have seen and heard of the administrative burden placed on claims adjusters to set up and properly document fresh COVID cases. Employers may find themselves overwhelmed by the sheer volume of take-home COVID cases they are suddenly forced to address and would be well served by getting ahead of this now.

And, as always, I urge you to loop your workers’ compensation attorney into any preparation for defending potential civil suits. No harm is done by cooperation and coordination.

Nothing would make me happier than to be absolutely wrong in this regard and for the Supreme Court to find that no such exposure exists and that COVID-19 is not asbestos.  But I bear the curse of often enough being right. 

Now, let’s all get ready for what lies just ahead as best as we can.

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.