In order to prepare for issues Oklahoma employers could face in the future, we monitor lawsuits filed in other states that present new, unique, or challenging claims for employers. Keeping track of national trends makes Oklahoma employers better equipped to address workplace challenges. A recent California lawsuit may offer a preview of pandemic-related claims we may encounter in our own state.

Health orders and advisories

During the course of the COVID-19 pandemic, San Francisco and Bay Area Counties issued shelter-in-place orders requiring individuals to remain in their residences to limit the spread of the virus. Later, health orders were issued governing the safe reopening of the economy. San Francisco’s reopening orders required strict health and safety measures, including daily screening protocols and workplace cleaning and decontamination procedures. The U.S. Centers for Disease Control (CDC) recommended similar requirements for employers.

Mr. Kuciemba’s work and the infection of Ms. Kuciemba

Robert Kuciemba and his wife Corby strictly complied with the shelter-in-place orders. Because Ms. Kuciemba was 65 and a high-risk person, staying at home and following recommended precautions were particularly important.

While working at a Victory Woodworks construction site in San Francisco, Mr. Kuciemba regularly came in contact with other people, including co-workers, suppliers, and subcontractors. At one point, Victory Woodworks transferred workers from another worksite to the construction site where Mr. Kuciemba was working. According to the Kuciembas, the employer knew or should have known it was commingling employees, some of whom were positive for COVID-19 or had been exposed to the virus.

Within a couple of days after Mr. Kuciemba’s last day of work with Victory Woodworks, his wife tested positive for COVID-19. She developed a severe infection, was hospitalized nearly a month, and was kept alive on a respirator. The Kuciembas alleged that Mr. Kuciemba “carried the virus back to his household,” and that Ms. Kuciemba contracted the virus through contact with her husband. In their negligence lawsuit against his employer, the Kuciembas criticized Victory Woodwork’s commingling of employees and accused the employer of:

• Violating health orders and guidances issued by San Francisco, the CDC, and OSHA;
• Failing to screen employees for COVID-19;
• Failing to clean and sanitize the workplace;
• Failing to adequately provide personal protective equipment; and
• Failing to put a social distancing policy in place

A California court dismissed the Kuciemba’s negligence claims against Victory Woodworks, finding that California’s workers’ compensation laws were the exclusive remedy for their claim that Ms. Kuciemba contracted COVID-19 as a result of her husband’s workplace exposure. Additionally, the court questioned her ability to pursue any such negligence claim.

But this is Oklahoma … not California

Why should an Oklahoma employer that doesn’t have to deal with over-the-top California employment laws and attorneys care about this case? Two reasons.

First, don’t be surprised if similar claims and lawsuits are someday filed against Oklahoma employers. Second, the Kuciemba lawsuit highlights the value for an employer being able to demonstrate they acted responsibly and followed applicable COVID-19 workplace guidances in the course of the pandemic.

Corby Kuciemba, et al v. Victory Woodworks, Inc., Case. No. 20-cv-9355-MMC (U.S. Dist. Ct. N. Dist. Cal. 5/10/21)