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Should Employees’ Workplace Exposure to COVID-19 Lead to Liability of Employers to Families and Others? The Northern District of California Says “No.”

Posted on: February 25th, 2021

By: Jennifer Markowski, R. Victoria Fuller and Kevin Kenneally

A year into the pandemic, the legal landscape facing employers arising out of the COVID-19 continues evolving. In a recent federal case in California, the Court was asked to consider whether employers could be held liable to family members and others who contract COVID-19 from employees infected in the workplace. In Kuciemba et al v. Victory Woodworks, Inc., 3:20-cv-09355-JCS (N.D. Cal. 2020), the plaintiffs allege that the husband’s employer is liable to the wife for physical injury caused by her COVID-19 infection and subsequent hospitalization. Although the husband’s claim for occupational exposure to COVID-19 is unquestionably prohibited by the workers’ compensation exclusivity bar, the question presented in Kuciemba was whether the wife’s claims were similarly barred.   

The employer raised solid arguments that a family member cannot recover for derivative claims arising from the worker’s occupational injury or illness. More specifically, in its motion to dismiss, the employer analogizes the wife’s claims to a spousal claim for negligent infliction of distress, which the California Court of Appeals had previously held was prohibited by the exclusivity bar because it was derivative of the employee’s work-related injury.

The plaintiff, on the other hand, argued that the injury at issue was not derivative of the spouse’s occupational injury, but instead the illness from COVID-19 is a separate, direct injury caused by negligence of the defendant company in protocols in the workplace that exposed her and others to harm and is therefore not barred by the workers compensation laws. The plaintiff also argued that established California law recognizes a duty on the part of employers to protect employees’ families from workplace exposure to pathogens.  The plaintiff relied on precedent in which a daughter was permitted to assert a claim against an employer for physical injury from exposure to carbon monoxide caused by her mother’s occupational exposure while pregnant with the daughter. The plaintiff also analogized the employer’s liability to household members to prevent COVID-19 infection to recognized causes of action in other toxic tort claims. For instance, it is a frequently-litigated claim in asbestos matters whether a workplace exercised reasonable care to prevent transmission of asbestos to an employee’s household members, often by asbestos fibers on work clothes brought home to be laundered, which is an actionable claim recognized by the California Supreme Court.

The U.S. District Court for the Northern District of California, however, decided this week that the wife’s claims are barred by the workers’ compensation statute’s exclusivity provision.

Given the endless opportunities for exposure to COVID-19 from employees to family members, similar suits are likely to follow in other jurisdictions.  As vaccines are becoming available to certain sectors of the workforce, employers should continue to ensure that they are appropriately following and enforcing all applicable federal, state, and local health and safety guidelines and determine if mandatory vaccination programs are advisable for its workforce.  If a court should decide that the workers’ compensation exclusivity bar is not applicable to such claims by family members and others, it could lead to wide-ranging exposure for an employer to civil litigation and possible tort liability to claimants who never entered the business premises. 

If you have questions or would like more information, please contact Jennifer Markowski at [email protected], R. Victoria Fuller at [email protected], Kevin Kenneally at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you. We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

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