A California court just struck a second blow to the lawsuit brought by the wife of a California construction worker who alleged that her husband contracted COVID-19 from his workplace and then spread it to her. We previously reported on this case, in which the employee’s wife alleged that her husband’s employer negligently failed to follow healthcare protocols to avoid the spread of COVID-19 to its workers’ family members. On May 10, the U.S. District Court for the Northern District of California ruled that it remained unwilling to entertain the theory that an employer can be held liable in these kinds of family-transmission cases. But questions still remain about what other courts may conclude about an employer’s duty to protect employee’s family members from contracting COVID-19, so you’ll want to review a summary of this decision to minimize your risk of getting sued.

Corby Kuciemba’s Claim Against Her Husband’s Employer

Victory Woodwork, Inc. is a Nevada-based casework and millwork company, and Robert Kuciemba was an employee at one of its construction jobsites in San Francisco last summer.  According to his wife’s complaint, Mr. Kuciemba started working on the jobsite on May 6, 2020, and on July 3, Victory Woodwork transferred additional workers to his jobsite. The workers transferred to the site had allegedly been exposed to COVID-19 at their prior jobsite in Mountain View, California. The Kuciembas claim that Victory knew that the workers it transferred to the San Francisco jobsite were exposed but did not take precautions to quarantine them from other workers, including Mr. Kuciemba.

Mr. Kuciemba allegedly came down with symptoms of COVID-19 within one or two days of his last day on the jobsite, and about a week after allegedly being required to work in close proximity to the workers from Mountain View. The Kuciembas were both hospitalized with confirmed cases of COVID-19, according to the complaint.

California law does not generally allow employees to bring lawsuits against their employers for their own injuries or illnesses contracted while working, reserving the workers’ compensation system for such matters. Mr. Kuciemba, therefore, was likely barred from bringing a lawsuit for his own illness. But Ms. Kuciemba was not an employee of Victory Woodwork and brought this lawsuit for damages related only to her illness.  

In her October 2020 complaint, she alleged that the company was negligent in allowing workers from the Mountain View jobsite onto her husband’s jobsite, when they knew those workers had been exposed to COVID-19. In February, the U.S. District Court for the Northern District of California dismissed the lawsuit, based on the same California law that prohibited Mr. Kuciemba from bringing a lawsuit for his own illness.  

In March, Ms. Kuciemba attempted to resurrect her claims by filing an amended complaint. In that complaint, Ms. Kuciemba slightly altered her claim to focus on a theory that the virus had been transported to her home through her husband’s clothing and personal belongings (aka “fomites”), which “served as a vehicle for the virus.” She likened her case to cases that involved transmission of asbestos fibers to others outside of a workplace via inanimate objects.

Ultimately, the court rejected Ms. Kuciemba’s second theory of her case as well. In the May 10 Order dismissing the case, the judge ruled that Ms. Kuciemba’s claim of indirect contraction of COVID-19 through fomites, such as her husband’s clothing, was not plausible. The judge did not explain further why she believed the claim was not plausible and dismissed the suit without allowing further amendment of the complaint.

While Ms. Kuciemba is foreclosed from bringing another amended complaint in the district court, there remains a chance that the ruling could be overturned on appeal – or that courts in other states might look more favorably on such a fact pattern. Regardless of the outcome of this specific case, however, it still raises questions for employers about your duty to protect employees’ family members and how you can avoid such lawsuits.

What Should Employers do to Avoid Family-Transmission Lawsuits?

Although Ms. Kuciemba’s claim was dismissed by the district court, such claims may survive in other states that have different laws. What can you do to avoid lawsuits from your employees’ family members? 

Some employers are in a position where they can allow employees to continue working from home until they are fully vaccinated, which is one way to avoid spread to family members from the workplace. However, many employers like Victory Woodwork cannot conduct business unless their employees are working from the jobsite.

For employers who need to have their employees working on site, you should be sure to follow federal, state, and local guidance from health officials, including providing proper personal protective equipment (PPE) and following requirements for quarantines. You should also be vigilant about taking mitigating action as soon as you notice a potential risk of exposure. You may also want to consider encouraging your employees to get vaccinated now that they are widely available to everyone in the United States.