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.

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s 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. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.