Compliance Matters TM

Employer Liability for Third Party COVID-19 Cases is Still in Flux

Can an employer be liable for COVID-19 that the employee brings home to their family? This issue is not yet settled. The California Supreme Court was recently asked by the Ninth Circuit to examine an employer’s liability for COVID-19 contracted by an employee’s household. Specifically, the California Supreme Court certified the following questions:

  1. If an employee contracts COVID-19 at their workplace and brings the virus home to their spouse, does California’s derivative injury doctrine bar the spouse’s claim against the employer?  
  2. Under California law, does an employer owe a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19?

           The case that the Ninth Circuit is seeking to punt to the Supreme Court is Kuciemba v. Victory Woodwords, Inc. In this case, the Kuciembas alleged that Victory Woodwards, Inc. negligently allowed COVID-19 to spread from a work site to their household, causing employee Robert Kuciemba to contract COVID-19 and bring it home to his spouse, Corby Kuciemba, causing her to be severely ill, hospitalized for more than a month and on a respirator. Last year, a California federal district court dismissed the suit, holding that an employer's "duty to provide a safe workplace to its employees does not extend to nonemployees who, like [her], contract a viral infection away from those premises." In addition, the Court held that the claim that she had contracted COVID-19 through direct contact with her husband, an employee of the company, was barred by the exclusive remedies of California's workers compensation statutes – and therefore would need to be addressed through the workers compensation mechanisms, not as a civil case. Lastly, the Court found that her theory that she contracted COVID-19 because of exposure to her husband's work clothing was just not a plausible claim.

           At the time, the case was a refreshing illustration of the limits of an employer's civil liability when it comes to non-employees who contract COVID-19 outside of the workplace. But, since then, the case was appealed to the Ninth Circuit, and now the Ninth Circuit has sought guidance from the California Supreme Court noting that "No California court has yet considered whether public policy favors creating an exception for employers who negligently infect their employee's family members with COVID-19."

           Earlier this year, a California Appellate Court did find that See's Candies could be sued by an employee whose husband died from COVID-19 after she possibly got COVID-19 at her See's Candies workplace and infected her husband. The California Supreme Court declined to review this holding. Now, the Court is being asked to weigh in again. If the Supreme Court agrees to answer the questions posed by the Ninth Circuit, its response could have great impact for California's employers with respect to an employer's liability to non-employees who never set foot in the physical workspace.

We will continue to monitor this case and provide updates.  If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at


Richard S. Rosenberg

Katherine A. Hren

Stephanie B. Kantor
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