A recent California Supreme Court ruling that employers aren’t responsible for so-called “take-home COVID” — when workers infect family members — has tossed the issue out of the workers compensation arena, experts say.
The court ruled July 6 that businesses don’t owe a duty of care to relatives of workers who contract COVID-19 on the job and then pass it along, and that workers comp exclusivity doesn’t prohibit lawsuits.
The ruling, Kuciemba v. Victory Woodworks, means spouses who contract COVID-19 are permitted to sue their spouse’s employer, but recovering damages means a much higher bar for plaintiffs, said Alan Gurvey, a Sherman Oaks, California-based attorney with Rowen, Gurvey & Win, who represents injured workers.
If the employer owes no duty of care to protect workers’ spouses from COVID-19, a plaintiff’s negligence theory would likely be too difficult to prove, Mr. Gurvey said.
“Historically, it has been very difficult for any kind of condition to involve a spouse in workers comp,” Mr. Gurvey said. “In other words, if someone does not work for the company … they don’t have a claim in workers compensation.”
Litigation remains a possibility.
“As far as the liability aspect goes, it will be difficult for a spouse to successfully sue — although they can, because the decision says they can — because if the employer doesn’t owe a duty of care, then what [legal] theory do you rely on,” Mr. Gurvey said.
Jeff Adelson, a partner with Newport Beach, California-based Adelson McLean P.C., which represents employers, said the California Supreme Court made a “really good public policy decision” but that the decision also means injured plaintiffs might be left without a remedy.
“I would say to employers, I wouldn’t jump up and down and say, ‘Yippee, this is a win,’” Mr. Adelson said. This “benefits us but this in no way gives us a license to be any less vigilant,” he said.
The Washington-based U.S. Chamber of Commerce welcomed the outcome.
“We are grateful the Court recognized that holding employers liable for nonemployees who contracted COVID-19 would be a significant expansion of tort law that would have forced employers to bear the responsibility of subsidizing the health care costs of the pandemic,” said Nicole Wasylkiw, the organization’s corporate counsel.
The California Supreme Court said that sometimes the “consequences of a negligent act must be limited in order to avoid an intolerable burden on society,” and that the “dramatic expansion of liability plaintiffs’ suit envisions has the potential to destroy businesses and curtail, if not outright end, the provision of essential public services.”
Sara Widener-Brightwell, general counsel for the Oakland, California-based California Workers’ Compensation Institute, said the “court made the correct decision in finding an exception to a duty of care just because of the widespread nature of COVID and the likelihood that every employer in the entire state could have had an action brought against them had the court found that that duty existed,” she said.
Steve Bennett, Washington-based assistant vice president for workers compensation programs and counsel for the American Property Casualty Insurance Association, said he ultimately agrees with the decision but still maintains that comp exclusivity should have been applied.
“We believe that such an injury is derived from the employee’s injury, because, but for the injury, there would have been no injury to the family member,” he said. “The analysis for derivative injuries has always been complicated and remains complicated, and it remains fact specific.”