Written by Jeremy Mittman and Daniel Innamorati

A federal judge in the Northern District of California tossed a lawsuit by the wife of an employee who allegedly contracted COVID-19 at work and transmitted the virus to her, finding that the wife’s claims are preempted by California’s worker’s compensation law.  

Mrs. Corby Kuciemba claimed she contracted COVID-19 after her husband, a Victory Woodworks Inc. employee, transferred jobsites without quarantining.  Ms. Kuciemba claimed Victory “knew or should have known” that its workers were potentially exposed to the virus.  Attempting to capitalize on California precedent holding employers liable so-called “take-home” torts, Mrs. Kuciemba characterized COVID-19 as similar to mesothelioma, for which non-employee household members have successfully brought lawsuits after a household member has come home from work in clothing carrying a toxin from the workplace.  Mrs. Kuciemba cited a case in which the California Supreme Court held that when it is reasonably foreseeable that workers will transfer mesothelioma-causing asbestos from work to the home, “employers have a duty of care to prevent this means of transmission.” 

Analogizing transmission of COVID-19 to that of the flu, Victory 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” and characterized Mrs. Kuciemba’s claim as derivative of her husband’s on-the-job injury, and thus barred by California workers’ compensation law.  Victory also pointed to the impracticalities related to keeping asymptomatic essential employees from coming to work and in arguing against Mrs. Kuciemba’s public policy, stated: “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’s brief order did not address these arguments and granted Ms. Kuciemba leave to amend her complaint and try again, its dismissal suggests a practical approach to “derivative workplace COVID-19 transmission” claims in the Ninth Circuit.