Finally, the defense catches a break in the world of COVID-19 presumptions.
The California Supreme Court has finally issued its long-awaited opinion in the case of Kuciemba v. Victory Woodworks, ruling that an employer has no duty of care to household members of employees that have contracted COVID-19 on an industrial basis.
Kuciemba v. Victory Woodworks, and its companion case, Ek v. See’s Candies, Inc., both ask the same question, in that can an Employer be held responsible to household, or family, members of an employee when that employee has been exposed to, and contracted, COVID-19 at the jobsite, and then brought said virus home, and passed same to household, or family members?
In analyzing this situation, the Kuciemba Court compared this concept to previous lines of cases where the court did find such a duty on the Employer. In this regard, the court focused on the case of Kesner v. Superior Court of Alameda County. The Kesner case was decided by the California Supreme Court in 2016, and in that matter the court created a duty of care against the Employers in favor of household, or family, members when employees brought asbestos home, and potentially exposing those non-employee family members to asbestos related illnesses.
So, one must ask the question, what did the California Supreme Court find different about the COVID-19 line of cases versus the asbestos line of cases? The court focused on public policy in finding the opposite outcome in the Kuciemba and See’s Candies, Inc. line of cases. In Kuciemba, the court specifically said, “[A]lthough it is foreseeable that the workplace spread of COVID-19 will cause members of employees’ household to contract the disease, recognizing a duty of care to non-employees in this context would impose an intolerable burden on employers in contravention of public policy.” In differentiating the asbestos line of cases, the court stated that while the only likely source for asbestos exposure would have been on the employer’s jobsite, the COVID-19 virus was highly contagious and encountered almost anywhere in society. Furthermore, the court focused on a person’s level of diligence in preventing contraction of, and spreading, of the COVID-19 virus. As a result, the court felt that the connection to the jobsite was not as direct with the COVID-19 virus as it was in the asbestos context.
For whatever reasons the court has made a distinction in these lines of cases, and the policy considerations against finding liability against the employer seems to be playing a part. Despite thisruling, however, the court has not shut the door completely on this issue, and has acknowledged that their view in this scenario may change in the future, depending on how the COVID-19 pandemic evolves over time. Hopefully, this part of the case does not encourage the Applicant Attorney/Plaintiff Attorney bar to press this issue again in the future.
