Workers' Compensation

Supreme Court: Employers are NOT Liable for “Take Home COVID”

September 2023

By Tom Richard
Oakland, CA

The California Supreme Court issued its long-awaited decision in the See’s Candies and related cases, finding that employers are not liable for personal injuries or wrongful death when an employee brings home COVID-19 from work, infecting family members.

The Supreme Court’s unanimous decision issued July 6, 2023 in Kuciemba v. Victory Woodworks, effectively reversed the outcome of a prior decision of California’s Second District Court of Appeal in Matilde Ek et al. v. See’s Candies Inc. et al. That case rejected defendant See’s Candies request to dismiss a COVID wrongful death lawsuit based on the workers’ compensation “exclusive remedy” rule, allowing the lawsuit to proceed. However, the See’s Candies court purposefully did not adjudicate whether employer owed a “duty of care” to those infected family members, noting the issue was not addressed by the lower trial court. Today, the Supreme Court held that employers’ duty of care does not extend to those family members, effectively blocking the lawsuit against See’s Candies and similar lawsuits from going forward.

Addressing the duty of care issue, the Supreme Court concluded that “…although the transmission of COVID-19 to household members is a foreseeable consequence of an employer’s failure to take adequate precautions against the virus in the workplace, policy considerations ultimately require an exception to the general duty of care in this context.”

The See’s Candies case was discussed at length in the Supreme Court decision. In that case it was claimed that defendant See’s alleged failure to implement adequate COVID safety measures resulted in the disease being transmitted from a See’s employee to her husband (who was not an employee of See’s)  when the employee went home to convalesce. The husband subsequently died from the disease a month later.

Defendant See’s filed a motion to dismiss the lawsuit, asserting that plaintiffs’ claims were barred by the “derivative injury doctrine”. The derivative injury doctrine establishes workers’ compensation as the exclusive remedy for claims that are derivative of an employee’s workplace injury. This means that if See’s were to prevail, the deceased husband, as a third party, would not be allowed to proceed with a separate wrongful death suit. Instead, his (estate’s) remedy would be limited to the benefits awarded to his spouse in the workers’ compensation system.

At issue was whether Mr. Ek’s third-party COVID lawsuit was derivative of his wife’s work injury, though the See’s court left open the separate question of whether the husband was owed a duty of care by his wife’s employer. The Court of Appeal did not adjudicate whether See’s owed that duty of care to infected family members because the issue was not addressed by the trial court below. However, the Supreme Court addressed the duty of care head-on and held that while “…moral blame largely tilt in favor of finding a duty of care, the policy factors of preventing future harm and the anticipated burdens on defendants and the community weigh against imposing such a duty.”

The Supreme Court found that while the “exclusive remedy rule” and “derivative injury” doctrine may not prevent third-parties from pursuing civil court remedies against employers in addition to or in lieu of workers’ compensation benefits, and while those employee family members are arguably owed a duty by the employer to prevent the spread of COVID, public policy nevertheless supports limiting that duty of care, effectively ending the lawsuit.

The Kuciemba v. Victory Woodworks case involved similar facts to those in See’s Candies. Robert Kuciemba worked for Victory Woodworks Inc. in San Francisco. In a federal court case, the Kuciembas alleged that the company knowingly transferred infected workers from a construction site with an outbreak to the location where Robert was working. He soon contracted COVID-19 that he brought home. His wife tested positive for COVID-19 and was hospitalized for more than a month and kept alive on a respirator.

However, the federal trial court dismissed the spouse’s lawsuit against Victory Woodworks, holding that either the derivative injury rule applies as a bar or else that there is no duty of care owed by the employer to household members for take home COVID, and either way, the suit cannot go forward.

Until the Supreme Court stepped in, there was a conflict in the law: The federal court held that both the derivative injury rule and the absence of an employer duty of care to family members warranted dismissal of the take-home COVID lawsuit, while the state court found that the derivative injury rule was not a bar to these lawsuits, without adjudicating the duty of care question.  It was this conflict between the federal court decision in Kuciemba and the California Court of Appeal decision in See’s Candies that the state Supreme Court was asked to address by the U.S. 9th Circuit Court of Appeal. The conflict is now presumably resolved by this decision in favor of California employers.

Implications for the law on Duty of Care

Today’s Supreme Court decision likely creates a new limit to California’s broad duty of care law. In personal injury cases involving community-wide pathogens allegedly brought home from work, exposed family members may not have a legal remedy against the workplace source of the pathogen. The court imposed this limit without relying on the exclusive remedy rule or the derivative injury doctrine to reach that result.

The Court reasoned: “While employers may already be required…protect their employees from COVID-19 infections, concluding they owe a duty to the household members of employees has the potential to alter employers’ behavior in ways that are harmful to society. Because it is impossible to eliminate the risk of infection, even with perfect implementation of best practices, the prospect of liability for infections outside the workplace could encourage employers to adopt precautions that unduly slow the delivery of essential services to the public.”

Further, the Court was forward-looking, noting that: “…if a precedent for duty (of care) is set in regard to COVID-19, the anticipated costs of prevention, and liability, might cause some essential service providers to shut down if a new pandemic hits.” That, in turn, would deprive society of essential goods and services.

The decision also seems to align California duty of care law with most of the rest of the nation regarding legal limits for “take home COVID.” Likely the Court’s ruling will be the first stop in analyzing the viability of similar lawsuits alleging workplace-to-home transmission of the common cold, influenza, and future community-wide epidemics or pandemics.

Implications for California Employers

While today’s decision by the state Supreme Court leaves intact the underlying Court of Appeal decision in See’s Candies and its narrowing of the “derivative injury doctrine,” the Court establishes what might be called a take-home pathogen duty of care exception to shield employers from liability.  Because an employer ultimately owes no duty of care to household members for “take home COVID,” the court found, an employer should prevail in dismissing such lawsuits, without having to go to trial.

It comes as a welcome relief to California employers who had been exposed to an untold number of lawsuits from individuals and estates who allege that their COVID infections were contracted indirectly from workplaces they never once visited. The Court stated that: “Even limiting a duty of care to employees’ household members, the pool of potential plaintiffs would be enormous, numbering not thousands but millions of Californians.”

In a thorough and thoughtful opinion, the Court carefully considers and accepts most of the plaintiffs’ arguments, but nevertheless concludes: “Imposing on employers a tort duty to each employee’s household members to prevent the spread of this highly transmissible virus would throw open the courthouse doors to a deluge of lawsuits that would be both hard to prove and difficult to cull early in the proceedings.”

California employers scored a victory in today’s decision, though not based on the “derivative injuries doctrine.” The decision addresses important public policy concerns finding that while employers arguably owe a duty to non-employees infected with COVID through exposure to an employee who contracted the disease at work, that duty will not be imposed on employers for sound public policy reasons.

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