James J. Oh, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Chicago office, was quoted in SHRM, in “Employer Not Liable for Allegedly Spreading COVID-19 to Employee’s Wife,” by Leah Shepherd.
Following is an excerpt:
The California Supreme Court recently ruled that employers are not liable when an employee catches a virus at work and transmits the virus to a family member.
The case, Kuciemba v. Victory Woodworks, involved a California woman who claimed she was infected with COVID-19 after her husband contracted it at a San Francisco construction worksite in 2020. She sued her husband's employer for negligence and premises liability. …
"Every employer would be a potential defendant, and millions of Californians would be potential plaintiffs due to the high transmissibility of COVID-19," said James Oh, an attorney with Epstein Becker Green in Chicago. …
General Duty Clause
Under federal law, employers have an obligation to prevent the spread of disease to employees. The general duty clause of the Occupational Safety and Health (OSH) Act of 1970 requires that employers provide a work environment "free from recognized hazards that are causing or are likely to cause death or serious physical harm." That means taking reasonable measures to prevent the spread of COVID-19 and other communicable diseases to employees.
HR professionals should "remain vigilant that their companies are complying with applicable safety and health rules and regulations," Oh said. The Kuciemba ruling "will not always shield a company from liability where the company's negligence, or failure to exercise due care, resulted in injury to a third party."
Demonstrating compliance with health and safety regulations will prevent lawsuits from being filed "because plaintiffs' lawyers will see that they will not be able to successfully state a cause of action for negligence," Oh said. This compliance "will also provide the company with an excellent defense … that it did all that it was supposed to do to prevent its operations from injuring others."