By Matthew A. Sloan, A. Scott Hecker, Adam R. Young, Patrick D. Joyce, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Department of Labor has announced notice and comment rulemaking as it seeks to revise its regulations regarding who can be authorized by employees to act as their representative to accompany OSHA compliance officers during physical workplace inspections.

Under current federal OSHA regulations, outside union officials and other third-parties who do not work at the site are not automatically entitled to accompany an OSHA inspector during an OSHA inspection, including the walkaround.  If outside third parties are permitted to attend, it must be because OSHA believes “good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.”  29 CFR 1903.8(c).  The reference to “industrial hygienist or a safety engineer” in the current form of the regulation implies that a third-party is expected to have technical safety expertise.

OSHA’s August 29 press release announcing the proposed rule explains the rule would remove the specific reference to “industrial hygienist or a safety engineer” and “clarif[y] that employees may authorize an employee, or they may authorize a non-employee third party if the compliance officer determines the third party is reasonably necessary to conduct an effective and thorough inspection.”  Id.  These third parties – which can include advocacy groups, unions (whether or not they presently represent employees at the worksite), and other labor organizations – need not have technical safety expertise.  Instead, all they need are “skills, knowledge or experience that may help inform the compliance officer’s inspection . . . includ[ing] experience with particular hazards, workplace conditions or language skills that can improve communications between OSHA representatives and workers.”  Id.

As currently drafted, the proposed rule would require the OSHA compliance officer to make an official determination that “good cause has been shown why [the union representative or other the third party’s] participation is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” Proposed 29 CFR 1903.8(c).  However, OSHA is still seeking public comment on the criteria and degree of deference OSHA should give to employees’ choice of representative in determining whether a third party can participate in an inspection.

Until the proposed rulemaking is complete, under current federal OSHA rules, employees at union and non-union sites in federal OSHA jurisdictions are entitled to the presence of at least one representative who is also an on-site employee during the course of the inspection.  State plan states, like California, have their own rules and regulations regarding union and third-party access to OSHA inspections but, as required by section 18 of the OSH Act, States will need to ensure their standards and enforcement of those standards are at least as effective as any final rule published by OSHA following the notice and comment rulemaking process.

Unionized employers should consult their collective bargaining agreements to determine whether those agreements provide greater access to outside Union representatives or other third-parties than what is currently afforded under the law.

For more information this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Adam R. Young, Daniel R. Birnbaum, Patrick D. Joyce, A. Scott Hecker, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: To increase enforcement concerning workplace violence incidents, OSHA published a Standard Interpretation Letter concluding injuries resulting from workplace violence are recordable, even if the incident occurs outside of the workplace.

OSHA regularly issues letters or memoranda responding to questions from the public requesting interpretations of OSHA standards or regulations.  Historically, OSHA will generate dozens of these Standard Interpretation Letters in a calendar year (including over 30 in 2021).  This year, as we head into the last third of the year, OSHA has issued only two Standard Interpretation Letters.

In its only Standard Interpretation Letter this year analyzing OSHA’s recordkeeping requirements, OSHA was asked whether an instance would be recordable when an employee traveling between service calls in a company vehicle, during worktime and on a public roadway, was involved in an accident with another driver, who then shot the employee, stole his truck and fled the scene.  The employee neither said nor did anything to provoke the other driver, and, in fact, the non-employee driver was in the midst of a serial crime spree at the time of the accident.

Under these circumstances, OSHA concluded that the injury was presumed to be work-related unless an enumerated exception under the standard applied.  Citing the preamble to the recordkeeping rule, OSHA reasoned the work-related “presumption encompasses cases in which an injury or illness results from an event at work that is outside the employer’s control, such as a lightning strike, or involves activities that occur at work but that are not directly related to production, such as horseplay.”

Significantly, the Standard Interpretation Letter stated that “OSHA’s recordkeeping regulation does not allow employers to exclude injuries and illnesses resulting from random acts of violence occurring in the work environment from their recordkeeping forms.”  OSHA reached this conclusion even though the incident had occurred not at the worksite, but on a public highway, an area that historically has fallen within the Department of Transportation’s jurisdiction.

OSHA now takes the position that even random acts of violence originating from individuals with no connection to the worksite or employer – e.g., robbers, active shooters, etc. – will be considered work related, and any injuries sustained as a result of these random acts must be recorded on an employer’s OSHA 300 log.  To the extent such incidents occur outside the workplace, OSHA will still consider them work-related if the incident occurs when an employee is engaged in a work-related task during work hours. For more information on OSHA record-keeping, workplace violence or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Adam R. Young, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: OSHA announced last week a notice of proposed rulemaking to revise the personal protective equipment standard for the construction industry. A revised standard will clarify that personal protective equipment (PPE) must fit each affected employee properly, to protect them from occupational hazards.

For the foreseeable future, experts estimate that the United States will face a massive shortage of construction workers, requiring employers continue to recruit new employees to the industry and change the workforce’s demographics. A more inclusive workforce (especially with women and smaller employees) means that some PPE in use will become inadequate for many employees.  PPE sometimes comes in limited size options or “one size fits all” that only properly fit the middle 95% of employees.  OSHA’s announcement expanded on the PPE safety issue:    

“The failure of standard-sized PPE to protect physically smaller construction workers properly, as well as problems with access to properly fitting PPE, have long been safety and health concerns in the construction industry, especially for some women. The proposed rule clarifies the existing requirement, and OSHA does not expect the change will increase employers’ costs or compliance burdens. The proposed revision would align the language in OSHA’s PPE standard for construction with standards for general industry and maritime.”

OSHA chief Doug Parker said that “if personal protective equipment does not fit properly, an employee may be unprotected or dangerously exposed to hazards and face tragic consequences… PPE must fit properly to provide adequate protection to employees. Improperly fitting PPE may fail to provide any protection to an employee, present additional hazards, or discourage employees from using such equipment in the workplace.”

Accordingly, OSHA is beginning the rulemaking process to require better fitting PPE in construction. The process for revising existing permanent OSHA standards is a long one, and requires that that agency solicit input from many stakeholders.  Employers and industry organizations are encouraged to submit comments and hearing requests online using the Federal eRulemaking Portal and reference Docket No. OSHA-2019-0003. Comments and hearing requests must be submitted by Sept. 18, 2023.

Construction employers also have a General Duty to protect employees from any recognized hazard. In the meantime as OSHA clarifies the construction PPE standard, construction employers should ensure that they have performed adequate PPE hazard assessments for the hazards their employees encounter.  Employers can preemptively assess any PPE sizing issues and whether employees are adequately protected. Employee involvement likely will help those assessments. 

Seyfarth continues to track new rules and PPE requirements in construction. For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis, Brent I. Clark,  Adam R. Young, A. Scott Hecker, Patrick D. Joyce, Benjamin D. Briggs, Mark A. Lies, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis:  The U.S. Department of Labor recently announced that OSHA has issued a heat hazard alert to “remind employers of their obligation to protect workers against heat illness or injury in outdoor and indoor workplaces.” States such as Michigan, Washington, and California are tackling the issue directly by implementing heat illness prevention regulations at the state level.

In addition to its “heat hazard alert” reminding employers to implement measures to protect exposed employees from heat illness, the Department of Labor (DOL) also announced that OSHA will intensify enforcement where workers are exposed to heat hazards, with increased inspections in high-risk industries like construction and agriculture. The Agency will rely upon its National Emphasis Program on “Outdoor and Indoor Heat-Related Hazards,” announced in April 2022, to focus enforcement efforts in areas and industries with the most vulnerable workers.

The reminder came as President Biden, on July 27, 2023, “announced new actions to protect workers from extreme heat and new investments to protect communities, as historically high temperatures break records and expose millions of people to the serious dangers of heat in the workplace.” The White House prepared a Fact Sheet outlining the President’s request that DOL and OSHA take additional steps to protect workers from heat illness. Since the President’s announcement, OSHA has saturated its daily workplace safety reminders with heat-related recommendations and best practices, including an August 9 reminder that “Employers should provide cool drinking water.”

In October 2021, OSHA began the rulemaking process to consider a heat-specific workplace standard by publishing an Advance Notice of Proposed Rulemaking for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings in the Federal Register. That regulatory process is ongoing and has not proceeded much beyond its incipient stage.

The Bureau of Labor Statistics reported 436 people have died due to workplace heat exposure, with an annual average of 38 deaths between 2011 to 2019. In addition, an average of 2,700 cases involving heat illnesses lead to days lost at work, putting an additional economic burden on workers and employers. Statistics show that people who work in conditions without adequate climate-control face higher risks of hazardous heat exposure and that these situations disproportionately expose people of color to hazardous heat.

Over the past 18 months, several states, particularly on the West Coast, have either implemented heat illness regulations or started the rulemaking process. In April 2023, California restarted a long-stalled rulemaking process to implement a revised heat illness prevention standard that will expand enforcement from outdoor industries such as agriculture and construction to include indoor heat. California’s proposed rule also includes onerous requirements to utilize engineering controls to lower indoor temperatures to threshold heat levels. On July 17, 2023, Washington’s new heat illness prevention regulation became effective, increasing the number of industries covered by the regulation and expanding coverage from summertime only to year-round. Oregon’s new heat stress rules, covering both indoor and outdoor workplaces, took effect on June 15, 2022.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Adam R. Young, A. Scott Hecker, Daniel R. Birnbaum, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: Augmented Reality (AR), Virtual Reality (VR), and Artificial Intelligence (AI) have become increasing factors in construction and general industry workplaces, creating not only potential safety hazards employers must address, but also opportunities for businesses to modernize and improve compliance systems.

Since the blockbuster popularity of Pokémon Go in 2016, most Americans are familiar with AR and how it might be used to project holographic images through lenses into the workplace.  That initial popularity demonstrated the most obvious new hazards of employees and other individuals wandering around workplaces for non-work tasks. 

But AR and AI offer significant promise in the field of safety.  Programs now comprehensively analyze photographs for compliance with easy-to-spot safety rules, like hard hat and glove violations.  When equipped with real time images, the technology offers increasing promise for spotting safety issues in dynamic workplaces.  Particularly in construction, AI software can be used to analyze workplaces and identify potential hazards that need to be addressed (e.g., guardrails for fall hazards).  As seen in the photo above, AR can help employees identify where and what to build.  

The growing field of “smart” and “soft” robots directly ties these analytics to real-time performance.  Powered industrial trucks that sense pedestrians and other objects will be able to prevent collisions.  Wearable biometric monitoring could track workload, metabolic heat and exposures to heat hazards.  At the National Safety Council (NSC) Congress, speakers at the Executive Forum observed “automation, wearables, augmented reality, virtual reality, drones, big data, machine learning, the Internet of Things – were all emerging technologies and were almost too numerous to keep track of.”  This Executive Forum offered an in-depth look at the tools and trends that organizations are beginning to adopt and provided some practical comments for EHS professionals who need to prepare themselves for a changing safety environment.  Readers can access NSC’s materials on these issues.

But with new technologies come new implications and challenges.  One inevitable risk of automation, particularly of a highly skilled analytical function, is improper reliance on the technology leading to complacency.  For employers to assume a workplace is safe or employees are complying with safety rules because the programs have not identified issues would be a mistake.  Under OSHA regulations, employers cannot delegate their duty to provide a safe workplace or proper supervision consistent with the employer’s safety role.  For example, an AI program and photo-analytics would be a supplement to, not a replacement for, a competent person making frequent and regular inspections at a construction site.  And employers and employees cannot delegate safe operation of vehicles to smart technology and the benefits it offers.

According to some industry leaders, the Metaverse will eclipse email and the internet as a primary form of human interaction. Employee interactions using VR create potential occupational risks that mirror those in real interactions — virtual bullying, intimidation, and sexual harassment. An outstanding question – with developing answers – is whether OSHA can regulate the Metaverse and any hazards employees face working there. Surely OSHA would take the position that employers must be proactive with regard to complaints regarding VR violence or harassment, as failure to address the issue could lead to workplace violence in the future. 

The challenges surrounding emergency technologies can bleed into the world of employment law and privacy.  Frequent AI analysis of the worksite may trigger employee surveillance issues under the NLRA.  The use of advanced, smart technologies could also implicate and infringe on protections concerning employee biometric information and issues surrounding appropriate medical inquiries under the Americans with Disabilities Act and state law. We note that Seyfarth recently presented a webinar on “The Risks and Benefits of Artificial Intelligence/Machine Learning to In-House Counsel, in Health Care and L&E Compliance.”  The program analyzed the major risks and benefits that in-house counsel face when addressing health care and labor/employment compliance issues resulting from the recent and unprecedented boom in artificial intelligence, machine learning, and internet of things in the health care and other key  industries.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Julia Tape and Linda C. Schoonmaker,

Seyfarth Synopsis: Workplace violence costs employers billions of dollars per year. More importantly, these incidents can cause immense physical and psychological harms to employees. The consequences of these harms impact productivity and morale, and can lead to individuals leaving the workforce. Compared to other job sectors, professionals working in the healthcare industry experience higher rates of workplace violence. Maintaining a strong workforce in the healthcare industry is crucial for the function of our society. Recognizing this, the Texas legislature has mandated steps to be taken by Texas healthcare facilities to aid in the prevention of workplace violence.

On May 15, 2023, Texas Governor Greg Abbott signed into law S.B. 240, the Workplace Violence Prevention Act. The Act will become part of Chapter 331 of the Texas Health & Safety Code. Although the Act takes effect on September 1, 2023, facilities subject to the Act have until September 1, 2024 to comply. Under the Act, “Facilities” include home healthcare service providers, licensed hospitals and nursing facilities, ambulatory surgical centers, free standing emergency medical centers, and licensed mental hospitals.

The Act requires Facilities to establish a Workplace Violence Prevention Committee to develop a workplace violence prevention plan. To comply with the Act, a “Committee” must be composed of one registered nurse who provides direct care, one licensed physician, and one security services employee. However, a Facility is not required to have a physician on the Committee if there is not a physician on staff. The structure of these Committees allows nurses to have a more active role in helping prevent workplace violence.

In addition to developing a workplace violence prevention plan, Facilities must create workplace violence prevention policies and implement response protocols for incidents of workplace violence. To implement and inform employees about the workplace violence plan and policies, Facilities are required to have annual workplace violence prevention training.

Along with the Workplace Violence Prevention Act, the Texas Legislature recently passed H.B. 915, the Reporting Workplace Violence Act, that requires employers to “post a notice to employees of the contact information for reporting instances of violence or suspicious activity to the [Texas] Department of Safety”, and inform employees of the right to make an anonymous report. A notice must be posted in “a conspicuous place in the employer’s place of business; in sufficient locations to be convenient to all employees; and in English and Spanish, as appropriate.” This Act will become part of Chapter 104A of the Texas Labor Code and takes effect on September 1, 2023.

The Workplace Violence Prevention Plan

A Committee is responsible for developing a workplace violence prevention plan that will be implemented at the Facility. The Act requires a Committee to meet annually to review and evaluate the workplace violence prevention plan, and to report the results to the governing body of the facility.

A workplace violence prevention plan must be practice specific, and address physical safety and security concerns. Additionally, the workplace violence prevention plan should include the definition of “workplace violence” as prescribed by the Act. For providers who are part of a healthcare system, only one Committee is necessary, but the Committee should create separate workplace violence prevention plans particularized to each Facility within the system. Healthcare systems must be able to distinguish data from each Facility when reporting the results.

Response Protocols

Healthcare providers and employees should be encouraged to provide confidential information about incidents of workplace violence to the Committee. In the event of a workplace violence incident, Facilities should establish post-incident services. Additionally, if a Facility is aware that a patient has a past history of engaging in workplace violence, a Facility must adjust patient care assignments to protect the provider who had the workplace violence encounter with the specific patient.

Individuals who report incidents of workplace violence are protected from retaliation, but there is no express remedy for employees who experience retaliation for complaining or providing information about workplace violence. Although the Act does not establish monetary penalties, a violation could impact a Facility’s licensure.

Takeaways

Although employers have until September 1, 2024 to comply with the Act, facilities that do not currently have a workplace violence prevention plan should take action sooner rather than later. Taking action as soon as possible will enable Facilities to have time to establish a Committee to develop a workplace violence prevention plan. If a facility has a pre-existing workplace violence prevention plan, the Committee should evaluate the existing plan to ensure it is compliant with the Act.

Policies should be clear about prohibited acts or threats that will be considered workplace violence. Employers should go beyond the Act by establishing Zero Tolerance policies. By setting clear expectations, employers can create safer working conditions for their employees, and increase morale.

Employers should mandate reporting workplace violence. In response to workplace violence incidents, employers should encourage employees to utilize Employee Assistance Programs. Facilities should have holistic response teams that include security, HR, legal, management, and psychological consultants.

It is crucial to inform employees about the workplace violence prevention plan, policies, and procedures to create safe working conditions for healthcare workers. Training on workplace violence should educate employees on how to identify early warning signs and behavioral indicators of workplace violence. Managers should be trained on how to effectively communicate the workplace violence prevention policies, and should know how to respond to incidents.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team or the Workplace Policies and Handbooks Team.

By Adam R. Young, Daniel R. Birnbaum, Matthew A. Sloan, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has announced new rules requiring a broad range of employers to electronically submit additional injury and illness information in 2024. 

Despite many delays and lawsuits from affected stakeholders, OSHA announced today that it will expand the types of OSHA forms employers must submit via the Injury Tracking Application (ITA) in 2024, for the 2023 calendar year. 

Employers across all industries were already required to submit OSHA Form 300A (Annual Summaries) for each establishment (worksite) with 250 or more employees.  Establishments with an NAICS code from certain “high-hazard” industries with 20 to 249 employees were also required to report.  The new rules announced today impose a new compliance obligation for establishments with 100 or more employees in “high-hazard” industries (including some employers on a new list), to electronically submit information from their Form 300A, Form 300 (OSHA 300 Log) and Form 301 (Injury and Illness Incident Reports for each row on the 300 log) to OSHA once a year. The industries covered by the new rule include a significant portion of the American workforce: manufacturing, construction, health care, retail, warehousing, transportation, and performing arts.  Employers with 250 or more employees that are not in the “high-hazard” industries are now not required to electronically submit recordkeeping information to OSHA.

In addition to the new compliance requirements, OSHA has indicated that it intends to publish the data online for public access, although information related to identifying employees, such as names and contact information, will not be publicly released or released through FOIA requests.  Information related to the number of injuries at a worksite and nature of those injuries, however, will be freely available to current and potential customers, union organizers, current and potential employees, and plaintiff’s lawyers.

In light of the new compliance obligations, as well as the potential exposure employers may face from the new rule, companies should consult experienced counsel to develop strategies in addressing how to minimize the instances of recordable injuries or illnesses at the workplace, as well as ensuring all required OSHA records are properly kept.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By A. Scott Hecker, Adam R. Young, Patrick D. Joyce, Benjamin D. Briggs, James L. Curtis, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: OSHA this week announced a national emphasis program (“NEP”) to prevent workplace hazards in warehouses, processing facilities distribution centers, and high-risk retail establishments.

According to OSHA,

[i]n the past 10 years, warehousing and distribution centers have experienced tremendous growth with more than 1.9 million people employed in the industry.  The Bureau of Labor Statistics data shows injury and illness rates for these establishments are higher than in private industry overall and, in some sectors, more than twice the rate of private industry.

To address these injury and illness rates, OSHA, on July 13, 2023, announced a NEP “to identify and reduce or eliminate hazards during warehousing and distribution center operations, mail/postal processing and distribution centers, parcel delivery/courier services, and certain high injury rate retail establishments.”  The NEP will last for three years, and

under [it], OSHA will conduct comprehensive safety inspections focused on hazards related to powered industrial vehicle operations, material handling and storage, walking and working surfaces, means of egress and fire protection. The program will also include inspections of retail establishments with high injury rates with a focus on storage and loading areas; however, OSHA may expand an inspection’s scope when evidence shows that violations may exist in other areas of the establishment.

Employers in these sectors should be aware of OSHA’s enforcement priorities and ensure their compliance programs address the named hazards.  While OSHA does not have specific regulations addressing heat or ergonomics, the agency advised it will also evaluate these areas, “and health inspections may be conducted if OSHA determines these hazards are present.”  Presumably, OSHA would employ the General Duty Clause to issue citations concerning heat or ergonomics.

The primary focus areas of the NEP are broad enough, but OSHA has explicitly noted “it may expand an inspection’s scope [to] other areas of the establishment” and may open health inspections where warranted, so the bounds of OSHA’s enforcement activity could expand quickly.  Employers can expect programmed inspections in the industry going forward. We will continue to monitor the development and implementation of this NEP.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Adam R. Young, A. Scott Hecker, Daniel I. Small, Benjamin D. Briggs, and Craig B. Simonsen

Seyfarth Synopsis: The COVID-19 pandemic and wildfire smoke shrouding the skies over the East Coast this summer have drawn more attention to indoor air quality, leading the New York City Council to propose indoor air quality resolutions. 

Indoor air quality has long been a source of employee health complaints. While the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) offers industry consensus standards on ventilation rates and federal OSHA provides action levels for specific contaminants, most indoor New York City workplaces currently face no regulations applicable to indoor air quality. New York City officials are considering proposed indoor air quality regulations. According to the Wall Street Journal, the legislation has been in the works for nearly a year but found new urgency after Summer 2023 wildfire smoke caused flashbacks to pandemic lockdowns. 

If adopted, the bill will “require the Department of Health and Mental Hygiene (“DOHMH”) to set standards regarding indoor air quality in city buildings, and engage in outreach and education regarding indoor air quality. It would also require the DOHMH, in collaboration with the Department of Environmental Protection, to issue real time and annual reports on the DOHMH website regarding air quality in city buildings.” Future regulations may extend the requirements to private buildings.

With indoor air quality regulation, New York City would be pushing occupational health legislation into a new frontier, pursuing legislation largely dissociated from data on employee exposure and health hazards. The legislation may serve as a model for other jurisdictions.  The mere discussion and publicity of this legislation could lead to new whistleblower complaints or unfounded refusals to perform work on account of employee safety and health. 

Seyfarth will continue to monitor and report on the status of this New York bill. For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

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By David S. Wilson and Joshua A. Rodine

Seyfarth Synopsis: The California Supreme Court unanimously held that while claims brought by an employee’s spouse for COVID injury are not barred by the Workers’ Compensation Act’s (WCA) exclusivity provision, policy considerations cautioned against imposing a tort duty to the members of an employee’s household. Kuciemba v. Victory Woodworks, Inc.

The Facts

 On May 6, 2020, Robert Kuciemba began working for Victory Woodworks, Inc. (Victory) at a construction site in San Francisco. Two months later, and without taking the required precautions as outlined in San Francisco COVID-19 health ordinance, Victory transferred a group of workers to the San Francisco site from another site where they may have been exposed to COVID. After being required to work in close contact with these new workers, Kuciemba was infected with the virus. Kuciemba then transmitted the virus to his wife, who was hospitalized for several weeks.

In October 2020, the Kuciembas sued Victory and asserted several tort claims. The District Court granted Victory’s motion to dismiss, concluding that (1) claims that Mrs. Kuciemba contracted COVID through direct contact with Kuciemba were barred by the WCA’s exclusive remedy provision, and (2) Victory’s duty to create a safe workspace did not extend to non-employees. The Kuciembas appealed to the Ninth Circuit, which then sought the California Supreme Court’s input on these two questions.

The California Supreme Court Decision

The Court first considered whether the WCA’s exclusivity provision barred Mrs. Kuciemba’s negligence claim. It concluded that her claim could proceed, even though her COVID infection resulted directly from her husband’s infection, which he sustained while on the job. The Court noted that while the derivative injury rule usually bars lawsuits from third parties arising out of a workplace injury (e.g., loss of consortium), the pertinent question was not whether an employee’s work-related injury was a “but for” cause of Mrs. Kuciemba’s infection; rather, the proper inquiry is whether the third party claim is “legally dependent” on the employee’s injury. Since Mrs. Kuciemba’s COVID infection and hospitalization were not legally dependent on her husband experiencing symptomatic COVID, her claim was not barred under the WCA.

Since the claim was not barred, the Court then addressed whether Victory’s duty to create a safe workplace extended to the spouses of its employees. While the Court noted that several factors weighed in favor of establishing such a duty, it ultimately decided against it.

The Court’s rationale was twofold. First, it emphasized that recognizing a duty of care to nonemployees in this situation would impose too heavy a burden on both employers and society in contravention of public policy. It explained that “[b]ecause it is impossible to eliminate the risk of infection, even with perfect implementation of best practices, the prospect of liability for infections outside the workplace could encourage employers to adopt precautions that unduly slow the delivery of essential services to the public.” And the precedent of such a duty, “might cause some essential service providers to shut down if a new pandemic hits.”

In addition, the imposition of a duty to prevent COVID infections of household members would greatly burden judicial economy. “Imposing on employers a tort duty to each employee’s household members to prevent the spread of this highly transmissible virus would throw open the courthouse doors to a deluge of lawsuits that would be both hard to prove and difficult to cull early in the proceedings.” For example, the causation of a COVID infection would be virtually impossible for an employer to refute at the pleading stage, since a plaintiff need only allege plausible case theory. The Court closed by pointing out that “[i]f ever there was ever a ‘floodgates’ situation, this is it.” In short, while infections of this sort are foreseeable, the ramifications of extending a tort duty justify a departure from the default rule of liability.

What Kuciemba Means for Employers: 

 While this case’s reach is partially limited by the extraordinary nature of the COVID pandemic, the fact that the Court placed clear limits on workplace COVID exposure claims is a welcome result. Furthermore, the decision is beneficial to employers in relation to the Court’s language regarding consideration of the societal effects of overbroad workplace liability and the unmanageability of similar claims.