Crisis Averted: California Employers Are Not Liable For "Take-Home" COVID Cases

• Published date: 13 July 2023
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Coronavirus (COVID-19), Employee Benefits & Compensation, Employee Rights/ Labour Relations, Professional Negligence, Operational Impacts and Strategy
• Law Firm: Proskauer Rose LLP
• Author: Mr Jonathan Slowik and Morgan J. Peterson

Last week, the California Supreme Court unanimously ruled that employers are not liable to nonemployees who contract COVID-19 from employee household members that bring the virus home from their workplace, because "[a]n employer does not owe a duty of care under California law to prevent the spread of COVID-19 to employees' household members." Kuciemba v. Victory Woodworks, Inc., No. S274191 (Cal. July 6, 2023), slip op. at 49.

We previously covered the Kuciemba action here, but as a reminder, the Ninth Circuit certified two questions to the California Supreme 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 (Lab. Code, ' 3200 et seq.) (the "WCA") bar the spouse's negligence claim against the employer, and (2) Does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees' household members?

The court answered the first question in the plaintiff's favor, concluding "take home" COVID-19 claims do not fall under the Workers' Compensation regime and therefore are not barred by the exclusivity provisions of the WCA. However, as a practical matter, the court's ruling on the second question-that employers owe no such duty of care-bars negligence claims for COVID-19 infection by members of an employee's household.

Public policy concerns drove the court's analysis. As it explained:

Imposing on employers a tort duty to each employee's household members to...