The Original Case: See's Candies and the Take-Home COVID Theory
In December 2021, a California appellate court allowed a groundbreaking wrongful death lawsuit to proceed against See's Candies, Inc. (Docket #20STCV49673). Matilde Ek, an employee at See's packing facility in Carson, California, alleged that the company failed to implement adequate COVID-19 safety measures — including proper social distancing on the packing line and in shared spaces. She contracted COVID-19 at work in early 2020 and brought it home, where her 72-year-old husband, Arturo Ek, became infected. He died a month later.
The appellate court rejected See's Candies' argument that workers' compensation was the exclusive remedy under the "derivative injury doctrine," which generally shields employers from civil suits by third parties whose claims arise from an employee's workplace injury. The court reasoned that Mr. Ek's death was not legally dependent on his wife's workplace injury — even an asymptomatic carrier could have transmitted the virus. This was the first appellate ruling in the nation to allow a "take-home COVID" wrongful death claim to proceed.
The California Supreme Court Reverses Course: Kuciemba v. Victory Woodworks (2023)
The legal landscape shifted dramatically on July 6, 2023, when the California Supreme Court issued its unanimous decision in Kuciemba v. Victory Woodworks, Inc. (Case No. S274191). This ruling effectively ended most "take-home COVID" litigation in California and provided significant relief to employers.
KEY RULING: The California Supreme Court held that employers do NOT owe a duty of care under tort law to prevent the spread of COVID-19 to employees' household members — even where the employer's negligence directly caused the employee's infection.
The Ninth Circuit Court of Appeals certified two critical questions to the California Supreme Court:
• Does the California Workers' Compensation Act (WCA) derivative injury rule bar a spouse's negligence claim against the employer?• Does an employer owe a duty of care to prevent the spread of COVID-19 to employees' household members?
The Supreme Court answered no to both questions. While confirming that the workers' compensation exclusivity rule does not automatically bar household members' civil claims, the court nonetheless concluded — on compelling public policy grounds — that imposing a duty of care on employers for household COVID infections would open "the courthouse doors to a deluge of lawsuits" that would be both hard to prove and economically devastating to California employers and essential services.
Impact on Workers' Compensation Claims
1. The Exclusive Remedy Doctrine Holds — For Employees
Workers' compensation remains the exclusive remedy for employees who contract COVID-19 or other infectious diseases at work. The Kuciemba decision reaffirmed that employees are limited to the workers' compensation system for their own occupational disease claims. California's COVID-19 rebuttable presumptions — which made it easier for certain categories of employees to prove work-relatedness — expired on January 1, 2024. Employees must now meet standard occupational disease compensability rules.
2. Household Members: A Narrowed But Not Eliminated Path
Kuciemba is specific to COVID-19 and was heavily driven by the unprecedented scale and transmissibility of the pandemic. The court distinguished COVID from asbestos exposure — where household take-home claims remain valid under Kesner v. Superior Court — because asbestos-related diseases like mesothelioma arise only after prolonged, specific exposure, creating an identifiable and limited plaintiff class. COVID's ubiquitous transmission made the class of potential plaintiffs practically unlimited.
CRITICAL DISTINCTION: Take-home asbestos claims by household members remain viable in New Jersey and California under established case law (Anderson v. A.J. Friedman Supply Co., 2010; Kesner v. Superior Court, 2016). The Kuciemba ruling is limited to COVID-19 and similarly ubiquitous infectious diseases.3. Occupational Disease Claims Are Expanding
Post-pandemic awareness has heightened scrutiny of employer responsibility for infectious disease exposure across all industries. Workers' compensation claims for occupational diseases — including COVID-19, tuberculosis, hepatitis, and respiratory conditions — have increased. Employers in healthcare, food processing, manufacturing, transportation, and other essential industries face elevated risk of occupational disease claims from their direct employees, even when household contact claims are barred.
4. The New Jersey Precedent Remains Intact
New Jersey has long recognized household contact claims. In Anderson v. A.J. Friedman Supply Co., Inc. (416 N.J. Super. 46, 2010), the Appellate Division upheld a claim by the spouse of an Exxon employee who developed mesothelioma from laundering her husband's asbestos-contaminated work clothes. The court applied the "dual persona doctrine" — the employer occupied a separate, independent role in relation to the household member — and held that the workers' compensation exclusivity rule did not bar her civil action.
This New Jersey framework continues to apply to asbestos and other specific occupational hazards. Employers with operations in New Jersey and similar states must recognize that their duty of care can extend beyond the workplace gate for identifiable, limited-exposure toxic substances.
5. Employer Takeaways and Compliance Obligations
Employers should act on the following priorities to manage their workers' compensation and tort exposure:
• Maintain and document all workplace safety protocols for infectious disease exposure, including OSHA and Cal/OSHA non-emergency COVID regulations (still in effect as of 2026).• Implement robust industrial hygiene programs for any hazardous substances — asbestos, PFAS, lead, toxic chemicals — where household take-home exposure pathways exist.• Review workers' compensation coverage to ensure it addresses occupational disease claims, which differ significantly from traumatic injury claims in proof and administration.• Consult legal counsel immediately when an employee reports a household contact exposure — the applicable law varies significantly by state, disease, and substance involved.• Document precautions taken to mitigate infectious disease spread; this evidence is critical to defending both workers' comp and civil claims.
The Bigger Picture: Future Pandemic and Infectious Disease Claims
The COVID-19 pandemic exposed structural weaknesses in how workers' compensation systems handle large-scale occupational infectious disease events. State legislatures and workers' compensation boards continue to evaluate presumptions, burden-of-proof standards, and coverage gaps revealed during the pandemic. Future outbreaks — whether of novel influenza strains, drug-resistant bacteria, or zoonotic pathogens — will test these frameworks again.
The principle underlying both the See's Candies litigation and the New Jersey asbestos decisions remains legally significant: when an employer's failure to maintain a safe workplace sets in motion a chain of harm that extends into employees' homes, courts will examine the employer's conduct carefully. In COVID's case, public policy overrode duty. In asbestos's case, it did not. The next occupational disease wave will require fresh analysis.
*Jon L. Gelman of Wayne, NJ, is the author of NJ Workers' Compensation Law (West-Thomson-Reuters) and co-author of the national treatise Modern Workers' Compensation Law (West-Thomson-Reuters).
Blog: Workers' Compensation
LinkedIn: JonGelman
LinkedIn Group: Injured Workers Law & Advocacy Group
Author: "Workers' Compensation Law" West-Thomson-Reuters
Mastodon:@gelman@mstdn.social
Blue Sky: jongelman@bsky.social
Substack: https://jongelman.substack.com/
© 2026 Jon L Gelman. All rights reserved.
Attorney Advertising
Prior results do not guarantee a similar outcome.
Updated 3/20/2026 - Originally published 12/21/2021
