Practical Answers to Employment Law Issues
August 03, 2022 - Coronavirus (COVID-19)

Employer Take Home Test: California Supreme Court to Consider Employer Liability for So-Called Take Home COVID-19

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COVID-19-related litigation remains on the frontline as the California Supreme Court agreed to decide, in Corby Kuciemba et al. v. Victory Woodworks Inc., case number S274191, whether employers may be liable for COVID-19 spreading to employees’ households.


The Kuciemba case stems from a claim brought by a Victory Woodworks employee and his spouse, alleging that the employer negligently caused and was therefore liable for the spouse’s purported injuries after she tested positive for COVID-19. According to the couple, the employer knowingly and improperly transferred workers from an infected construction site to the employee’s jobsite. Soon after working in close contact with the transferred workers, the employee developed COVID-19. Later the employee’s spouse tested positive for COVID-19 and was hospitalized with severe symptoms.

A federal district court dismissed the lawsuit in May 2021, and the Ninth Circuit took up the issue on appeal. In ruling on the case, the district court considered workers’ compensation laws and how they can provide a remedy for workplace injuries affecting employees and third parties who are injured as a result of the employee’s workplace-related injury under the derivative injury doctrine. The district court held that workers’ compensation laws should provide the exclusive remedy and that the derivative injury doctrine barred the employee’s claims since the family member’s injury would not exist without injury to the employee.

Finding the appeal “present[ed] issues of significant public importance for the state of California,” the Ninth Circuit certified two questions for the high court in light of “uncertain precedent.” The first question is whether employers owe legal duties to the households of their employees to prevent the spread of COVID-19. The second question is whether such suits are barred under California’s derivative injury doctrine, which generally bars lawsuits by third parties that are collateral to or derivative of injuries covered by workers’ compensation.

Uncertain Precedent?

Kuciemba follows the California Court of Appeal’s decision in See’s Candies, Inc. v. Superior Court (2021) 73 Cal.App.5th 66. In See’s Candies, the appeals court refused to dismiss a suit filed by an ex-See’s employee who claimed her employer’s insufficient safety protocols led to her husband’s death, after he contracted the illness from his wife (who contracted it in the workplace). The employer argued that the employee could not bring claims of negligence and premises liability for an illness that a non-employee suffered outside the workplace and that the husband’s death arose directly from the employee’s workplace illness. As such, the employer further argued, the employee could only pursue a remedy under workers’ compensation laws based on the derivative injury doctrine. Rejecting the employer’s argument, the court ruled that third parties who suffer injuries “logically and legally independent of any employee’s injuries” as a result of a company’s negligence do not lose their right to sue and were not subject to preemption by workers’ compensation law. The California Supreme Court declined to review the See’s Candies opinion. The decision was the first of its kind, and now Kuciemba will provide further guidance to employers during the COVID-19 era.

Concluding Thoughts

Given that COVID-19 shows no sign of disappearing, the California Supreme Court’s decision will inform the scope of potential employer liability. A decision favoring the employee may open the floodgates for lawsuits against employers for “take home” COVID-19 infections, whereas a decision favoring the employer would help limit employer liability. In any event, employers should continue to protect themselves by announcing and adhering to prevailing COVID-19 protocols. It is especially important to ensure that proper guidance is followed in response to any workplace COVID-19 case.