July 1, 2022

Seeking COVID-19 Clarity

The Ninth Circuit Court of Appeals has certified to the Supreme Court of California the following questions:

  • If an employee contracts COVID-19 in the workplace and brings the virus home to a spouse, does California’s derivative injury doctrine bar the spouse’s claim against the employer?
  • Under California law, does an employer owe a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19?

The Supreme Court’s opinion in the case of Kuciemba v. Victory Woodworks, (March 9th Cir. 2022) should help in answering these long-standing and far-reaching questions concerning COVID-19 workplace liability.

The Facts
Former employee Kuciemba alleges Victory Woodworks (Victory) knowingly transferred workers from an infected construction site to Kuciemba’s jobsite without following safety procedures required by the City of San Francisco’s “Shelter in Place” Health Order issued March 2020. Kuciemba alleges that as a result of this negligent practice, and because he worked in close contact with these employees, he contracted COVID-19 and inadvertently brought the virus into his home where his wife was exposed. Considered ‘high-risk’ due to age and health factors, Mrs. Kuciemba was hospitalized for more than a month after contracting COVID-19 and was kept alive on a respirator.

The Procedure
The   district   court   granted   Victory’s   motion to dismiss, finding that Mrs. Kuciemba’s claims against her husband’s employer were barred by California’s derivative injury doctrine and, in the alternative, that Victory did not owe a duty to Mrs. Kuciemba.  An appeal to the Ninth Circuit and subsequent certification to the California Supreme Court followed.

The Future
The Supreme Court called out the importance of certification on this issue, noting there is currently no controlling precedent and the fact that this case presents issues of significant public importance for the State of California. Specifically, the Court will determine:

  • The scope of an employer’s liability in a personal injury action for the spread of COVID-19, the application of the public policy exception to an employer’s general duty of care[i] in the context of a pandemic; and
  • Whether California’s derivative injury doctrine applies to injuries derived in fact from an employee’s workplace injury.

Answers to these questions of first impression will undoubtably have a huge impact on employers as COVID-19 cases continue to spike here in California giving weight to the idea that the one predictable thing about COVID-19 seems to be its unpredictability.

It is important that employers continue to monitor and comply with Cal/OSHA, California Department of Public Health, local health department and Center for Disease Control COVID-19 protocols. Members with questions concerning COVID-19 compliance should contact Western Growers.

[i] Cal. Civ. Code § 1714(a)