By Mark A. Rothstein
Should an employer be held liable if an employee is infected with the SARS-CoV-2 virus in the workplace and subsequently “takes it home” and infects a family member? The California Supreme Court will soon take up this question in Kuciemba v. Victory Woodworks.
The take-home liability theory was developed in the 1990s to provide a remedy for family members exposed to asbestos fibers brought home on the clothing of an employee, which later resulted in severe illness or death. Asbestos presented a unique and compelling case for recovery for a number of reasons: it is responsible for hundreds of thousands of deaths, asbestosis and mesothelioma are diseases solely caused by asbestos exposure, an OSHA standard requires employers to provide protective clothing and changing rooms to prevent take-home exposures, and strict products liability theory may be used because asbestos is a “product.”
Notwithstanding these compelling factors for plaintiffs, the states are about evenly divided on whether they recognize lawsuits based on the take-home theory. Courts in states prohibiting such actions consider the harms unforeseeable, or determine that there is no significant relationship between the exposed family member and the employer, or rely on legislation barring take-home cases.
The California Supreme Court has adopted take home asbestos liability and the California Court of Appeals has applied this to COVID-19, but the California Supreme Court has yet to rule on this specific issue.
According to the facts alleged by the plaintiffs in the pending California case, Robert Kuciemba worked for Victory Woodworks, Inc. (“Victory”), a furniture/construction company in San Francisco. As an “essential industry,” the company was permitted to remain open during a “lockdown” in San Francisco. Robert Kuciemba and his wife, Corby Kuciemba, allege that they followed all recommended safety precautions and minimized their exposure to other people. The complaint alleges that Victory knowingly transferred workers from an infected worksite to Mr. Kuciemba’s jobsite without following required safety precautions and forced Mr. Kuciemba to work in close contact with the infected workers. Mr. Kuciemba soon developed COVID-19, which he brought home. Mrs. Kuciemba became infected and manifested severe respiratory symptoms, requiring hospitalization on a respirator for more than a month.
Mrs. Kuciemba filed suit in California state court alleging negligence and negligence per se (premises liability), and Mr. Kuciemba brought a claim for loss of consortium. Victory removed the case to federal district court and moved to dismiss. The district court granted the motion, holding that Mrs. Kuciemba’s claims were barred by California’s derivative injury doctrine, which only allows workers’ compensation as a remedy for third-party claims “collateral to or derivative of” an employee’s work-related injuries. The motion to dismiss also held in the alternative that Victory did not owe her any duty: the “defendant’s duty to provide a safe workplace to its employees does not extend to nonemployees.”
On appeal, the Ninth Circuit determined that California courts had never considered creating an exception to the exclusive remedy of workers’ compensation “for employers who negligently infect their employee’s family members with COVID-19.” It stayed the proceedings and certified two questions to the California Supreme Court, which agreed to answer them.
The first certified question is the applicability of the “derivative injury doctrine.” Recent California precedent holds that claims by an employee’s spouse for take-home COVID-19 are not barred by this workers’ compensation doctrine.
The second, and more interesting, certified question, and the one likely to be raised in other states, is whether an employer owes a duty to the spouse of an exposed employee in the context of COVID-19. Any answer in the affirmative must address the concern that extensive liability for the spread of a highly contagious pathogen would threaten the economic viability of key industries during or after a pandemic and entangle courts in limitless scientific controversies involving causation.
The California Supreme Court has demonstrated it understands the need to prevent unlimited liability in take-home cases. In Kesner v. Superior Court, the court limited an employer’s liability for take-home exposure to asbestos to the members of a worker’s household. It observed, “By drawing the line at members of a household, we limit potential plaintiffs to an identifiable category of persons who, as a class, are most likely to have suffered a legitimate, compensable harm.”
Present circumstances might make it challenging to draw a similar line for take-home exposure causing COVID-19. In July 2020, when Mrs. Kuciemba tested positive, exposures were relatively discrete, and the dominant strain of the virus was not nearly as transmissible as later variants. But today, because of the greater transmissibility of the Omicron variant, it might be quite difficult for a plaintiff to prove that a spouse’s exposure at work was the likely cause of illness, even if actions for take-home exposure are deemed cognizable.
There are also questions about mitigation. For example, today, would a plaintiff need to be fully vaccinated, boosted, tested, and promptly treated to proceed with a take-home case, or would the health status of the plaintiff be relevant only in proving or rebutting causation or damages?
The certified questions being considered by the California Supreme Court are only the start of a complex and important analytical inquiry. Based on the precedent in California, the California Supreme Court is likely to recognize a cause of action for take-home COVID-19 but the court could limit recoveries by clarifying the plaintiff’s burden of proof and the available remedies.
Mark A. Rothstein is the Herbert F. Boehl Chair of Law and Medicine and Director of the Institute for Bioethics, Health Policy and Law at the University of Louisville.