A recent California Supreme Court ruling finds that employers do not owe a duty of care under California law to prevent the spread of COVID-19 to an employees’ household members. However, the Court also held that the exclusivity provisions of the Workers’ Compensation Act do not bar a non-employee’s recovery for injuries that are not legally dependent on an injury suffered by an employee.

In the case Kuciemba v. Victory Woodworks, Inc., (Kuciemba)^[i] an employee alleged his employer’s failure to take COVID-19 precautions – required by the County of San Francisco – resulted in his COVID-19 infection and that of his spouse.

The following questions were before the Court: 1) If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, does the California Workers’ Compensation Act (WCA)^[ii] bar the spouse’s negligence claim against the employer? (2) Does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members?

WCA Does Not Bar Spousal Negligence Claims Associated With COVID-19

Certain exclusivity provisions of the WCA limit an employee’s recovery for work-related injuries to the WCA’s so-called ‘compensation bargain.’ Under this bargain, the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability.  In the bargain, employees are afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, give up the wider range of damages potentially available in tort^[iii].

In Kuciemba, the Court found that when it comes to derivative claims – such as injuries suffered by the spouse of an injured employee – the WCA exclusivity provisions did not bar the spouse’s tort claims (for damages suffered due to contracting COVID-19) against the employer because the injury suffered was deemed independent of the employee’s workplace injury. In other words, a family member’s claim for their own independent injury, one not legally dependent on the employee’s injury, is actionable as a tort claim, even if both injuries were caused by the same negligent conduct of the employer.

Employer Has No Duty of Care to Prevent Spread of COVID-19 to Employee Family Members

The requirement of a legal ‘duty of care’ is frequently invoked to generally limit otherwise potentially infinite liability which would follow from every negligent act. Codified in the California Civil Code, this duty of care – even in an employment context – is broad but nonetheless limited.

In Kuciemba, plaintiffs alleged the employer was required “to exercise due care in [its] own actions so as not to create an unreasonable risk of injury to others.” Determining that the “touchstone” of such an “analysis is the foreseeability of [] intervening conduct,” the Court’s response focused on not only the employer’s duty of care but other mitigating circumstances (e.g., conduct of the employee in getting to/from work, varying levels of diligence in masking and avoiding crowds or employing other precautions to prevent illness).

Continuing to focus on the practicalities of a broad interpretation of the employer’s duty of care, the Court envisioned not only “dire financial consequences for employers and a possibly broader social impact,” but also “the potential litigation explosion facilitated by a duty to prevent COVID-19 infections in household members,” and the significant burdens that would place on the judicial system and the community.

Taking all this into consideration, the Court’s final ruling that, “an employer does not owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members,” was not surprising.

Key Takeaways

While an employer may not have a ‘duty of care’ when it comes to preventing the spread of COVID-19 to an employee’s household members, it does still have legal obligations to prevent the spread of COVID-19:

• California Department of Public Health COVID-19 recommendations
• Cal/OSHA Non-Emergency Regulations (in effect until February 3, 2025); and
• Cal/OSHA Illness and Injury Prevention program requirements (including integrated COVID-19 requirements).

Following state mandated COVID-19 protocols will also help lower an employer’s risk when it comes to defending against an employee’s household member’s individual injury allegedly caused by the employer’s negligence.

[i] Supreme Court of California S274191 (July 6, 2023).

[ii] Lab. Code, § 3200 et seq.

[iii] Tort is a legal term meaning a wrongful act or an infringement of a right (absent a contract) leading to civil liability.