Ask Leslie: Claims Against Employers For Workplace Covid-19 Infections Brought Home: A California Update

By Leslie Zieren, The McCalmon Group, Inc.

What is the latest news regarding claims by family members against employers whose employees brought workplace Covid-19 infections home?

The U.S. Court of Appeals for the Ninth Circuit hears lawsuits from Alaska, Arizona, California, Guam, and Hawaii.

The Ninth Circuit Court received an appeal on April 21, 2022 (Kuciemba v. Victory Workworks, Inc. Case No. 21-15963) from a dismissal of the case by a superior court in California. In the case, an employee's wife asserted that by violating a California Covid-19 health order, her husband's employer caused her to suffer injuries from contracting Covid-19. The plaintiff wife asserts negligence, negligence per se, and negligence (premises liability) claims against the employer, and the plaintiff employee included his claim for loss of consortium.

In order to decide the case, the Ninth Circuit recently certified two questions to the California Supreme Court to ascertain California law, which is silent so far on these issues:

"1. If an employee contracts COVID-19 at his workplace and brings the virus home to his spouse, does California's derivative injury doctrine bar the spouse's claim against the employer?

2. 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 Ninth Circuit Court describes the need for certification of these questions as follows:

"Certification is warranted if there is no controlling precedent and the California Supreme Court's decision could determine the outcome of a matter pending in our court. See Cal.R Ct. 8.548(a). This appeal not only meets both criteria, but also presents issues of significant public importance for the State of California: the scope of an employer's liability in tort for the spread of COVID-19, the application of the public policy exception to Cal. Civ. Code §1714(a)'s general duty of care in the context of a pandemic, and—perhaps most sweepingly—whether California's derivative injury doctrine applies to injuries derived in fact from an employee's workplace injury."

The case is based on the following:

The plaintiff husband worked for a furniture/construction company in San Francisco. In March 2020, in the pre-vaccination days of the pandemic, the city was shut down. When restrictions were somewhat relaxed two months later, essential industries, like construction, were allowed to reopen, but with stringent health order conditions imposed by California. The parties allege they strictly complied with the various government Covid-19 orders, "followed all recommended safety precautions, and minimized their exposure to other people."

Only the husband, the employee, had frequent contact with others through his work at the jobsite. The plaintiffs allege the employer knowingly transferred workers from a Covid-19 infected construction site to the jobsite where the plaintiff husband worked, without following the safety procedures required by the Health Order.

The employee was forced to work in close contact with these employees and soon developed COVID-19, which infection he brought home to his wife. The plaintiff wife is over 65 and at high risk from COVID-19 due to her age and health. She tested positive for the COVID-19 on July 16, 2020, developed severe symptoms, was hospitalized for more than a month, and was kept alive on a respirator.

Concerned employers watching these so-called "take-home" Covid-19 infection cases say, depending on the outcome of this case, lawsuits could be brought not only by workers' family and friends, but by anyone infected by that circle of people.

Note that this case will yield an interpretation of only the law in California.

We will keep you informed.

Jack McCalmon and Leslie Zieren are attorneys with more than 50 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.

If you have a question that you would like Jack McCalmon or Leslie Zieren to consider for this column, please submit it to ask@mccalmon.com. Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.

 

 

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