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


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, R. Victoria Fuller at, Kevin Kenneally at

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

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