The wife of a California construction worker recently brought a lawsuit against her husband’s employer after he allegedly contracted COVID-19 from his jobsite and spread it to her. She alleged that her husband’s employer negligently failed to follow healthcare protocols to avoid the spread of COVID-19 to its workers’ family members. This type of family-transmission case has been anticipated by employers across the country, who have been asking how far their duty extends to protect people other than their own workers against COVID-19. To their employees’ family members? To friends of the family members? To their children’s teachers? While this lawsuit doesn’t definitively answer all of these questions, it does shed light on the issues you should be considering to keep your employees (and their families) safe – and to avoid an unwanted lawsuit.

Corby Kuciemba’s Claim Against Her Husband’s Employer

Victory Woodwork, Inc. is a Nevada-based casework and millwork company, and Robert Kuciemba was an employee at one of its construction jobsites in San Francisco last summer.  According to his wife’s complaint, Mr. Kuciemba started working on the jobsite on May 6, 2020, and on July 3, Victory Woodwork transferred additional workers to his jobsite. The workers transferred to the site had allegedly been exposed to COVID-19 at their prior jobsite in Mountain View, California. The Kuciembas claim that Victory knew that the workers it transferred to the San Francisco jobsite were exposed but did not take precautions to quarantine them from other workers, including Mr. Kuciemba.

Mr. Kuciemba allegedly came down with symptoms of COVID-19 within one or two days of his last day on the jobsite, and about a week after allegedly being required to work in close proximity to the workers from Mountain View. The Kuciembas were both hospitalized with confirmed cases of COVID-19, according to the complaint.

California law does not generally allow employees to bring lawsuits against their employers for their own injuries or illnesses contracted while working, reserving the workers’ compensation system for such matters. Mr. Kuciemba, therefore, was likely barred from bringing a lawsuit for his own illness. But Ms. Kuciemba was not an employee of Victory Woodwork and brought this lawsuit for damages related only to her illness.  

In her October 2020 complaint, she alleged that the company was negligent in allowing workers from the Mountain View jobsite onto her husband’s jobsite, when they knew those workers had been exposed to COVID-19. Mr. Kuciemba joined her lawsuit, alleging his own damages due to his wife’s illness. Ultimately, the U.S. District Court for the Northern District of California dismissed the lawsuit in February 2021, based on the same California law that prohibited Mr. Kuciemba from bringing a lawsuit for his own illness. But there remains the chance that the case could be resurrected on appeal – or that courts in other states might look more favorably on such a fact pattern. Regardless of the outcome of this specific case, however, it still raises questions for employers about your duty to protect employees’ family members and how you can avoid such lawsuits.

What Should Employers do to Avoid Family-Transmission Lawsuits?

Although Ms. Kuciemba’s claim was dismissed by the district court, such claims may survive in other states that have different laws. What can you do to avoid lawsuits from your employees’ family members? 

Some employers are in a position where they can allow employees to continue working from home, which is one way to avoid spread to family members from the workplace.  However, many employers like Victory Woodwork cannot conduct business unless their employees are working from the jobsite.

For employers who need to have their employees working on site, you should be sure to follow federal, state, and local guidance from health officials, including providing proper personal protective equipment (PPE) and following requirements for quarantines. You should also be vigilant about taking mitigating action as soon as you notice a potential risk of exposure.

Can an Employee Request an Accommodation to Avoid Exposing At-Risk Family Member?

The Equal Employment Opportunity Commission (EEOC) has confirmed in recent guidance that, the Americans with Disabilities Act (ADA) does not entitle employees to accommodations to avoid exposing their family members to COVID-19. In other words, if an employee says they are concerned about working at their jobsite because their family member has a health condition that puts them at greater risk for serious illness, you are not legally obligated to provide that employee with an accommodation under the ADA. 

However, you may voluntarily choose to provide such accommodations. Voluntary accommodations, such as allowing particular employees to take a temporary unpaid leave, could help mitigate the risk of a lawsuit like the one brought by Ms. Kuciemba. However, they could also set a precedent and obligate you to offer similar employee leaves in future scenarios, so you will want to check with your employment counsel before taking such an action.