covid-19

Employers Do Not Have Duty To Prevent Spread Of COVID To Household Members.

On May 6, 2020, Robert Kuciemba began working for Victory Woodworks, Inc. at a construction site in San Francisco. About two months later, Victory transferred a group of workers to the San Francisco site from another location where they may have been exposed to COVID-19. Victory made this transfer without taking precautions required by the county’s health order. After being required to work in close contact with the new workers, Robert was infected with COVID-19. Robert carried the infection home and transmitted it to his wife Corby. Corby was hospitalized for several weeks, and at one point, on a respirator.

On October 23, 2020, the Kuciembas sued Victory, asserting claims for negligence and premises liability. The trial court dismissed the case concluding that: (1) the claims that Corby contracted COVID-19 through direct contact with Robert were barred by California’s Workers’ Compensation Act’s (WCA) exclusive remedy provisions; (2) the claims that Corby contracted COVID-19 through indirect contact with infected surfaces were subject to dismissal for failure to plead a plausible claim; and (3) the claims failed because Victory’s duty to provide a safe workplace did not extend to nonemployees, such as

Corby, who contracted a virus away from the worksite. The Kuciembas appealed and the CA Supreme Court agreed to answer, among other questions, whether California Law imposes a duty of care on employers to prevent the spread of COVID-19 to their employees’ household members.

In response to this question, the CA Supreme Court noted that the general rule of duty in California establishes that each person has a duty to exercise reasonable care for the safety of others. There are exceptions to this rule, including when a person’s injuries are inflicted by a third party, not the defendant. Under these circumstances, there is no duty to control, warn, or protect unless there is a special relationship between the parties that gives rise to a duty. The Kuciembas allege that Corby was harmed by Victory’s misconduct in transferring potentially infected workers to Robert’s jobsite and forcing Robert to work in close proximity to them. The Kuciembas allege that Victory created a risk of harm by violating a county health order designed to limit the spread of COVID-19.

The Supreme Court determined that an employer does have a duty in the COVID-19 context not to create an unreasonable risk of the disease’s transmission.

The Supreme Court then considered whether there were any policy reasons to create an exception to this duty, first considering whether it was foreseeable that there would be transmission to a family member and then considering whether the burdens on the community outweighed such a duty.

The Court determined that it was foreseeable that Victory’s failure to adhere to the workplace precautions against the spread of COVID-19 could result in transmission of the virus to employees’ households. The City and County of San Francisco’s health orders mandated specific health and safety precautions to prevent the spread of COVID-19 at construction jobsites, including, but not limited to screening workers for symptoms daily upon arrival and removing any infected worker from the jobsite immediately. An employee’s return home at the end of a workday was expected and predictable, and transmission could be attributed to the employer’s negligence in failing to take reasonable precautions to prevent workplace exposure.

Victory argued that due to COVID19’s highly contagious nature, it is impossible to trace an employee’s infection, and many factors could affect the likelihood that an employee would contract and transmit COVID-19. Employees may exercise varying levels of diligence in properly wearing a mask and avoiding crowds. The Court agreed that the connection between Victory’s wrongful conduct and injury was somewhat attenuated, but nonetheless, it is still foreseeable that an employee exposed to the virus through the employer’s negligence will pass the virus to a household member.

The Court then considered whether the anticipated burdens on defendants and the community weighed against imposing such a duty. Victory expressed concern that recognizing a duty to employees’ household members would impose enormous and unprecedented financial burdens on employers, both in potential damages awards and litigation costs. The Court considered the cost to defendants of upholding the duty of care. Because it is impossible to eliminate the risk of infection, even with perfect implementation of best practices, the prospect for liability for infections outside the workplace could encourage employers to adopt precautions that unduly slow the delivery of essential services to the public. The Court also noted that imposing a duty to prevent secondary COVID-19 infections would extend to all workplaces, making every employer in California a potential defendant. The Court reasoned that the virus is extremely contagious, making infection possible after a relatively brief exposure. The pool of potential plaintiffs would be enormous. The Courts would be flooded with litigation, forced to decide fact-specific disputes that could be complex and timeconsuming.

The Court determined that the significant and unpredictable burden of imposing this duty of care on California businesses, the court system, and community at large weighed in favor if recognizing the exception. Although it was foreseeable that employees infected at work would carry the virus home and infect their loved ones, the Court determined that the dramatic expansion of liability had the potential to destroy businesses and end essential public services.

The Court concluded that employers do not owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members.

Kuciemba v. Victory Woodworks, Inc. (2023) __P.3d__ [2023 WL 4360826].

Note:

This case is a win for employers across California, including schools, because it acknowledges that employers have little control over the spread of COVID-19 to household members and establishes that employers do not owe a duty of care to employee’s family members in preventing the spread of COVID-19. We covered this case in a recent blog post and we covered the oral arguments in a recent edition of Private Education Matters

IBM Must Reimburse Employees For Costs Incurred While Working Remotely During Pandemic.

Paul Thai was employed by International Business Machines Corporation (IBM) in March 2020, when Governor Gavin Newsom issued a stay-at-home order due to the COVID-19 pandemic. Thai needed internet access, telephone service, a phone headset, a computer and accessories in order to perform his work. IBM provided these items to its employees in its offices. After the Governor’s order went into effect, IBM directed Thai and several thousand other employees to continue performing their regular job duties from home. Thai and his coworkers personally paid for the services and equipment necessary to do their jobs while working from home. IBM never reimbursed its employees for these expenses, despite knowing that its employees incurred them.

Thai filed suit, on behalf of him and his coworkers, arguing that he should be reimbursed for these expenses under Labor Code Section 2802(a). The trial court disagreed with Thai and determined that IBM’s instructions to employees to work from home were due to government orders and therefore did not need to be reimbursed as necessary business expenses. Thai appealed.

On appeal, Thai argued that the trial court’s ruling was contrary to the plain language of Labor Code Section 2802(a), which requires employers to reimburse employees for all necessary expenditures or losses that are a direct consequence of the discharge of their duties. The Court of Appeals agreed with Thai.

The Court of Appeals reasoned that Section 2802(a) is designed to protect workers from bearing the costs of business expenses incurred by workers doing their jobs. The elements of a Section 2802(a) cause of action are:

(1) the employee made expenditures or incurred losses;

(2) the expenditures or losses were incurred in direct consequence of the employee’s discharge of his or her duties, or obedience to the director of the employer; and

(3) the expenditures or losses were necessary.

The only element at issue here was the second element. IBM argued that Thai began to incur work from home expenses, not because his job duties changed, but because the government required him to stay at home. Therefore, IBM argued, they were not the direct cause.

Conversely, Thai argued that in a recent similar case in California involving Amazon, the federal trial court ruled that Amazon was liable to pay for the expenses because Amazon expected the plaintiff to continue to work from home after the stay-at-home orders were issued. This meant that Amazon had to pay the reasonable expenses incurred even if Amazon was not the “but-for” cause of the shift to remote work.

The Court of Appeals agreed with the Amazon case and likewise reasoned that even though the Governor’s order was the “but-for” cause of certain work-from-home expenses, there is no language in the statute that exempts an employer from the reimbursement obligation. Under the statute’s plain language, the obligation does not turn on whether the employer’s order was the proximate cause of the expenses, it turns on whether the expenses were actually due to the performance of the employee’s duties. The Court of Appeals reversed the trial court’s judgment and remanded the case for further proceedings.

Thai v. International Business Machines Corporation (2023) __Cal.App.5th.__ [2023 WL 4443934].

Note:

This case serves as an important reminder that if employees are expected to work from home, even due to situations such as a COVID-19 exposure or a stay-at-home order, schools must reimburse employees for the necessary expenses they incur to perform their job duties.