An April 5, 2022 WLF Legal Pulse post by Robert Wright, Cases in State and Federal Court Could Create “Take-Home Covid-19” Liability in California, noted a Ninth Circuit case raising the twin questions whether employers owe a duty to nonemployees to protect them from COVID-19 and whether the workers’ compensation laws preempt such claims.  The case is Kuciemba v. Victory Woodworks, Inc., Ninth Circuit Case No. 21-15963 (trial court opinion here).  At oral argument in that case, the judges asked counsel whether those issues should be certified to the California Supreme Court.  At the time we published the post, the Ninth Circuit had not issued such a certification order.

On April 21, the Ninth Circuit certified both issues.  The Ninth Circuit’s order asks the state high court to decide:

  1. If an employee contracts COVID-19 at his workplace and brings the virus home to his spouse, does California’s derivative injury doctrine bar the spouse’s claim against the employer?
  2. Under California law, does an employer owe a duty to the households of its employees to exercise ordinary care?

(April 21, 2022 Order Certifying Questions.)  The California Supreme Court is not required to accept the certified questions, but it has granted a high percentage of Ninth Circuit requests for help in resolving questions of California law.  As a result, the odds seem pretty good that the state high court will accept the request.  That court now has the opportunity to determine whether “take-home” COVID-19 claims can circumvent the state workers’ compensation system and whether employers can be liable for failing to protect nonemployees from COVID-19 during a pandemic in which the virus is prevalent throughout the community. As we noted in an April 15 update post, the state high court passed on an opportunity to weigh in on the issue when it denied a certiorari petition in See’s Candies Inc. v. Superior Court.