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Employers Do Not Have Duty To Prevent Spread Of COVID To Household Members
On May 6, 2020, Robert Kuciemba began working for Victory Woodworks, Inc. at a construction site in San Francisco. About two months later, Victory transferred a group of workers to the San Francisco site from another location where they may have been exposed to COVID-19. Victory made this transfer without taking precautions required by the county’s health order. After being required to work in close contact with the new workers, Robert was infected with COVID-19. Robert carried the infection home and transmitted it to his wife Corby. Corby was hospitalized for several weeks, and at one point, on a respirator.
On October 23, 2020, the Kuciembas sued Victory, asserting claims for negligence and premises liability. The trial court dismissed the case concluding that: (1) the claims that Corby contracted COVID-19 through direct contact with Robert were barred by California’s Workers’ Compensation Act’s (WCA) exclusive remedy provisions; (2) the claims that Corby contracted COVID-19 through indirect contact with infected surfaces were subject to dismissal for failure to plead a plausible claim; and (3) the claims failed because Victory’s duty to provide a safe workplace did not extend to nonemployees, such as Corby, who contracted a virus away from the worksite. The Kuciembas appealed and the CA Supreme Court agreed to answer, among other questions, whether California Law imposes a duty of care on employers to prevent the spread of COVID-19 to their employees’ household members.
In response to this question, the CA Supreme Court noted that the general rule of duty in California establishes that each person has a duty to exercise reasonable care for the safety of others. There are exceptions to this rule, including when a person’s injuries are inflicted by a third party, not the defendant. Under these circumstances, there is no duty to control, warn, or protect unless there is a special relationship between the parties that gives rise to a duty.
The Kuciembas allege that Corby was harmed by Victory’s misconduct in transferring potentially infected workers to Robert’s jobsite and forcing Robert to work in close proximity to them. The Kuciembas allege that Victory created a risk of harm by violating a county health order designed to limit the spread of COVID-19.
The Supreme Court determined that an employer does have a duty in the COVID-19 context not to create an unreasonable risk of the disease’s transmission.
The Supreme Court then considered whether there were any policy reasons to create an exception to this duty, first considering whether it was foreseeable that there would be transmission to a family member and then considering whether the burdens on the community outweighed such a duty.
The Court determined that it was foreseeable that Victory’s failure to adhere to the workplace precautions against the spread of COVID-19 could result in transmission of the virus to employees’ households. The City and County of San Francisco’s health orders mandated specific health and safety precautions to prevent the spread of COVID-19 at construction jobsites, including, but not limited to screening workers for symptoms daily upon arrival and removing any infected worker from the jobsite immediately. An employee’s return home at the end of a workday was expected and predictable, and transmission could be attributed to the employer’s negligence in failing to take reasonable precautions to prevent workplace exposure.
Victory argued that due to COVID-19’s highly contagious nature, it is impossible to trace an employee’s infection, and many factors could affect the likelihood that an employee would contract and transmit COVID-19. Employees may exercise varying levels of diligence in properly wearing a mask and avoiding crowds. The Court agreed that the connection between Victory’s wrongful conduct and injury was somewhat attenuated, but nonetheless, it is still foreseeable that an employee exposed to the virus through the employer’s negligence will pass the virus to a household member.
The Court then considered whether the anticipated burdens on defendants and the community weighed against imposing such a duty. Victory expressed concern that recognizing a duty to employees’ household members would impose enormous and unprecedented financial burdens on employers, both in potential damages awards and litigation costs. The Court considered the cost to defendants of upholding the duty of care. Because it is impossible to eliminate the risk of infection, even with perfect implementation of best practices, the prospect for liability for infections outside the workplace could encourage employers to adopt precautions that unduly slow the delivery of essential services to the public. The Court also noted that imposing a duty to prevent secondary COVID-19 infections would extend to all workplaces, making every employer in California a potential defendant. The Court reasoned that the virus is extremely contagious, making infection possible after a relatively brief exposure. The pool of potential plaintiffs would be enormous. The Courts would be flooded with litigation, forced to decide fact-specific disputes that could be complex and time-consuming.
The Court determined that the significant and unpredictable burden of imposing this duty of care on California businesses, the court system, and community at large weighed in favor if recognizing the exception. Although it was foreseeable that employees infected at work would carry the virus home and infect their loved ones, the Court determined that the dramatic expansion of liability had the potential to destroy businesses and end essential public services.
The Court concluded that employers do not owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members.
Kuciemba v. Victory Woodworks, Inc. (2023) __P.3d__ [2023 WL 4360826].
Note: This case is a win for employers across California, including schools, because it acknowledges that employers have little control over the spread of COVID-19 to household members and establishes that employers do not owe a duty of care to employee’s family members in preventing the spread of COVID-19. We covered this case in a recent blog post and we covered the oral arguments in a recent edition of Private Education Matters.