During the pandemic, most employers could take solace in the fact that if their employees contracted COVID-19 at their workplace, they were generally protected from liability under their state's workers compensation laws. But what happens if the employee brings the virus home and one or more family members are now have sick? These so-called "take home" cases have been around in the asbestos exposure context for years. But now, more than two dozen "take home" COVID-19 cases have been filed across the country. And arguably the most high-profile one will be tested before the California Supreme Court.
Robert Kuciemba allegedly was exposed to COVID-19 through his work and brought the virus home and infected his wife, who is over 65 and at high risk. Kuciemba filed suit against his employer for his wife's injuries. The district court dismissed the case, which was then appealed to Ninth Circuit. After hearing argument, the Ninth Circuit has turned the case over to the California Supreme Court to answer the two questions below.
The outcome of the Kuciemba case will directly impact employers in California, and perhaps elsewhere given that California is our most populous state. Should "take home" liability be recognized in Kuciemba, additional "take home" lawsuits against employers will almost certainly be filed throughout the country in short order.
The questions to be answered are: First, if an employee contracts COVID-19 at his workplace and brings the virus home to his spouse, is the spouse's claim blocked by California's derivative injury doctrine? The second question is whether an employer owes a duty under state law to the households of its employees to exercise ordinary care to prevent the spread of COVID-19.