California employers probably believe that they only have to worry about employees bringing COVID-19 employment related claims at the Workers’ Compensation Appeals Board (the WCAB). This is generally a valid assumption. But, there have been at least two such cases heard in Federal District Court, one in the 5th District in Fresno (the court where I cut my baby-lawyer teeth) and one in the 1st District in San Francisco. Both cases were brought for claims of employer actions (or inaction) related to COVID-19 leading to injuries the employees claimed they sustained in the workplace.
So, how exactly does an employee bring a COVID-19 workplace injury claim against their employer in Federal Court? For the following two cases, the Plaintiffs alleged causes of action that were not covered by the exclusive remedy rule. Or did they?
In Kuciemba et al v. Victory Woodworks, Inc., No. 3:20-cv-09355 (N.D. Cal.), most of the claims were brought by the employee’s wife, though the employee did allege a loss of consortium claim. Mrs. Kuciemba brought several state law claims against the employer including Public Nuisance, Negligence, Negligence Per Se, and Negligence – Premises Liability. Only Mr. Kuciemba alleged Loss of Consortium. The case landed in Federal Court due to Diversity jurisdiction; the Defendant was a Nevada Corporation.
The Kuciemba’s raised a very novel argument to support their position that exclusive remedy did not bar their claims. They analogized COVID-19 to asbestos cases. The argument was that the courts have long recognized that employees could carry asbestos particles on their clothing and person and would shed these on coming home, causing harm to the family members with whom they lived. By analogy, employees could carry COVID-19 home on their clothing or person and shed those causing infections in family members with who they lived. The Defendant, wisely in my opinion, countered that no court has ever held a company liable for the spread of other infectious diseases transmitting from the workplace to the home, such as the flu. They further argued that the Plaintiffs were asking the employer to do what the global public health system and pharmaceutical industry failed to do: keep COVID-19 from invading the home
In the end, both Mrs. and Mr. Kuciemba found their civil claims barred by the exclusive remedy rule. The Federal Court Judge, who probably did not have a good deal of experience with California workers compensation law, held that workers’ compensation proceedings are the exclusive remedy for these third-party claims deemed “collateral to or derivative of the employee's injury,” such as claims by an employee's spouse for loss of the employee's services or consortium and for emotional distress suffered by a spouse in witnessing the employee's injuries.” The Judge cited to the fairly recent California Supreme Court case LeFiell Manufacturing Co. v. Superior Court (2012) 55 Cal.4th 275, 284-285. All causes of action were dismissed February 22, 2021, with leave to amend. All claims other than public nuisance were barred by the exclusive remedy rule. For public nuisance, there was a lack of standing.
In Ornelas v. Central Valley Meat Co., Inc., No. 20-1017 (E.D. Cal.), the Plaintiff alleged a class action and brought numerous state law claims. She invoked federal jurisdiction by also alleging federal claims such as the Family Medical Leave Act, 29 U.S.C. §2601 and a request for Declaratory Judgment under 28 U.S.C. §2201. This claim was filed in July 2020 and is still ongoing. It remains to be seen if any of the causes of action in this case will also be barred by exclusive remedy.
As these cases show us, an employee can claim a COVID-19 infection was caused by his or her conditions of employment and still bring an action in state or Federal Court. However, they might find this claim barred by exclusive remedy.
California employers probably believe that they only have to worry about employees bringing COVID-19 employment related claims at the Workers’ Compensation Appeals Board (the WCAB). This is generally a valid assumption. But, there have been at least two such cases heard in Federal District Court