April 19, 2021

Volume XI, Number 109


April 16, 2021

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In Sickness and In Health – Court Rejects Spouse’s COVID Claim Against Employer

Last week, a California federal judge dismissed with leave to amend a claim made against a Nevada company by the spouse of an employee who contracted COVID-19, allegedly at his workplace, and later transmitted the disease to her.  In its order, the court dismissed the spouse’s claims as preempted by “the exclusive remedy provisions of the California workers’ compensation statutes.”

The plaintiff, Mrs. Kuciemba, alleged she contracted COVID-19 after her husband (an employee of Victory Woodworks) moved from one jobsite to another without a quarantine period preceding the transfer. Further, she claimed Victory, “knew or should have known that its workers at the Mountain View jobsite were all potentially exposed to COVID-19.”  Mrs. Kuciemba characterized the disease as similar to asbestos-caused mesothelioma, for which certain non-employee household members have successfully prosecuted similar claims.  To support her argument, Mrs. Kuciemba pointed to Kesner v. Superior Court (2016) 1 Cal. 5th 1132, in which the California Supreme Court held that when it is reasonably foreseeable that workers will act as vectors carrying asbestos from the jobsite to the household, “employers have a duty of care to prevent this means of transmission.” In so arguing, Mrs. Kuciemba claimed she suffered a direct injury and thus general negligence and “public policy concerns” should apply.

Victory, analogizing the mechanism of transmission between COVID-19 and influenza, noted that “over the last century, no employer has ever been held liable to a household member who contracted influenza from an employee who was exposed at work.”  Essentially, it characterized Mrs. Kuciemba’s claim as derivative of her husband’s on-the-job injury, which would be subject to workers’ compensation preemption.  In so arguing, the company pointed to the impracticalities related to keeping asymptomatic and pre-symptomatic essential employees from entering the jobsite.  Further, in contradicting Mrs. Kuciemba’s public policy claim, Victory noted the stark reality of an outcome in plaintiff’s favor: “plaintiffs are asking the employer to do what the global public health system and pharmaceutical industry failed to do: keep COVID-19 from invading the home.”

While the court did not directly address these arguments, its dismissal indicates an early, pragmatic approach to derivative workplace COVID-19 infection claims in California.

© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 60



About this Author

Anthony J Oncidi, Employment Attorney, Proskauer Rose Law Firm

Anthony J. Oncidi heads the Labor & Employment Law Group in the Los Angeles office. Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection....


Dylan Tedford is an associate in our Labor and Employment Department. Dylan graduated from the University of Southern California Gould School of Law, where he was a member of the Hale Moot Court Honors Program and served in several student organizations. While at USC, he was a legal extern for Judge Gregg Zive in the U.S. Bankruptcy Court for the District of Nevada. Prior to law school, Dylan was a government affairs coordinator for a lobbying firm in Nevada.