During a time of very bad news coming out of our court systems, Kuciembra v. Victory Woodworks, decided earlier this month, is especially worrisome. How worrisome? Well, I’m pretty doom and gloom about COVID and climate change, and this depressed even me. I don’t see how we survive if we adopt the logic of this case. 

Above, a storm at the end of a dirt road. Photo by Raychel Sanner on Unsplash

The facts are simple: Robert Kuciembra was forced to work in a workplace with a high risk of COVID, a place where his employer did not offer adequate protection against infection and, in fact, defied a county health order. Kuciembra was infected and passed the virus to his wife sued his employer. The court quickly agreed that an employer could be held responsible for this kind of injury. The debate, then, was around whether an employer has a duty of care to prevent the spread of COVID to households of employees.

This is not the only time an employer has attempted to hold their employer accountable for preventable injuries and death related to COVID. With well over a million people dead from infection, most everyone infected (and most infected more than once now), 1 out of 5 suffering from long-term injury and disability, and rapid increases in cancer, stroke, heart attacks, diabetes, immune system problems, and mental illnesses related to infection, there are lots of examples of lawsuits filed by workers who tried to protect themselves but could not effectively do so without cooperation from their employer. 

And we’re not talking about superhuman efforts to stop the spread of the virus. We’re not even talking about the kinds of mitigations that rich people and politicians like Joe Biden use to stay safe. We’re talking about basic efforts to preserve life and health. Clean air. Time to stay home if sick. Low-cost tests to determine if employees are contagious and should be quarantined to protect others. 

Do employers owe these simple and affordable efforts to their employees?

The court concluded no. Here is their deadly logic:

“Although it is foreseeable that an employer’s negligence in permitting workplace spread of COVID-19 will cause members of employees’ households to contract the disease, recognizing a duty of care to nonemployees in this context would impose an intolerable burden on employers and society in contravention of public policy. These and other policy considerations lead us to conclude that employers do not owe a tort-based duty to nonemployees to prevent the spread of COVID-19.”

But that’s not how courts are supposed to work. They don’t avoid holding those who harmed others accountable because accountability is “intolerable” for wrongdoers. Part of the point of holding people accountable is that it’s painful. The pain motivates them to stop doing the act that hurts others. 

The alternative is that workers bear the pain of death, disability, and grief. The court’s choice to relieve employers, who have the most power to reduce risk, of their responsibility to others while requiring employers to accept risk is a stunning injustice. 

Without mitigation, workers are fish in a barrel. 

The court grasps some of this. In fact, a substantial portion of the decision is spent explaining how COVID spread in the workplace is entirely foreseeable. From the decision: 

“[S]ufficient information was provided to employers like Victory that it was reasonably foreseeable their failure to take adequate precautions against spread of the virus could result in its transmission to employees’ households.”

“Given the high transmissibility of the virus, it was reasonably foreseeable that an employee negligently exposed at work would transmit the virus to household members.”

“When, in [returning home from work at the end of the day, which is predictable and expected], the employee serves as a vector in spreading a highly contagious disease to household members, the transmission can be attributed to the employer’s negligence in failing to take reasonable precautions to prevent workplace exposure.”

Tellingly, the defendants argued that because a construction zone is the site of so much potential infection, it would be impossible to know the exact source of the infection at a construction job site–arguing that the higher the risk, the less responsibility they bear.

In the matter of whether it is foreseeable that COVID would spread around a workplace and be brought into employees’ homes, the court is quite clear:

“Regardless of alternative sources of exposure, or variations in the personal precautions employees undertake, it is plainly foreseeable that an employee who is exposed to the virus through his employer’s negligence will pass the virus to a household member.”

Additionally, the court found that, because the company had more power and knowledge, it had a greater obligation to keep workers safe than workers themselves had.Workers look to their bosses to set the standard for safety, and they are not in a position to fight against their bosses when that safety standard is low.

Why, then, can’t employers be responsible for the harm they expose employees to?

The court doesn’t allow liability “where the social utility of the activity concerned is so great, and avoidance of the injuries so burdensome to society, as to outweigh the

compensatory and cost-internalization values of negligence liability.” 

While “the cure is worse than the disease” is pithy, it’s not at all true about COVID. Over a million Americans have died from the acute stage of the disease and many more from its after effects; this is truly a terrible disease, not just for those who die from acute infection or the diseases that COVID causes but for all of us who are affected by the continued sickness of our fellow citizens.

And “avoidance of the injuries”–efforts like paid sick leave, paid time off to be vaccinated, and clean indoor air–are not “burdensome to society.” They are a benefit to society but a hassle for capitalists. Lots of societies already have them. The US doesn’t, and that’s why an astonishing 1 out of 7 deaths worldwide due to COVID have been of Americans. 

The court’s conclusion that the “social utility” of the activity is great doesn’t make sense in this case. Victory Woodworks is a custom cabinetry company that focuses on commercial buildings, hotels, and casinos. That is not essential work. 

Additionally, the “avoidance of injuries” in this case was not burdensome. Victory Woodworks acted “without taking precautions required by the county’s health order,” leading to the infection of both an employee and his spouse. Thus, the court is implying that a county health order not to mix infectious and non-infectious employees in close quarters is burdensome to “society.” But if this basic principle of public health is rejected as unreasonable, what mitigation would the court find acceptable? 

The court acts like America will collapse if we require workplace mitigations against the spread of the world’s most contagious virus.

The court treats the cost of any kind of mitigation as too high. “There is also a possibility,” the justices warn, “that imposing a tort duty not covered by workers’ compensation could lead some employers to close down, or to impose stringent workplace restrictions that significantly slow the pace of work.” In other words, if saving lives is too expensive or slows down how long it takes for a casino to install some new cabinets, then companies don’t have to do it. As the court disingenuously and disgustingly invokes concern for social welfare here:

“The economic impact of such changes could be substantial and is difficult to forecast. For businesses regarded as essential and projects that serve the social welfare, slowed operations or shutdowns could be particularly detrimental.”

But making cabinets for a casino isn’t essential and doesn’t serve the public welfare. Besides, economists have warned that long COVID alone–not deaths, short-term illness, or the cost of caring for those who are ill–will hit $3.7 trillion. It’s hard to see how requiring companies to follow local public health orders would be more “substantial” or disruptive than that. 

The court ignores the actual costs of unmitigated spread and instead predicts the end of public services if we hold employers accountable for the suffering that occurs when they violate public health orders:

“Although it is foreseeable that employees infected at work will carry the virus home and infect their loved ones, the dramatic expansion of liability plaintiffs’ suit envisions has the potential to destroy businesses and curtail, if not outright end, the provision of essential public services.” 

If the court was concerned about social welfare, they’d hold employers accountable for learning about how to mitigate against COVID and then implementing strategies to reduce spread. Instead, Victory Woodwork deliberately chose to violate a public health order, and the court suggests that because mitigating against COVID might make it harder, say, for the water treatment plant to operate, Victory Woodworks can’t be held responsible for knowingly engaging in behavior that would likely lead to infection. 

The court also cites an increased workload for the judicial system if employers can be held accountable, saying:

“[T]he potential litigation explosion facilitated by a duty to prevent COVID-19 infections in household members would place significant burdens on the judicial system and, ultimately, the community.”

But the judicial system’s job is to ensure just treatment of those who cannot achieve it through other means–that is, those who are weaker. It’s also a mistake to equate a challenging situation with the courts to harm to a community. If the courts won’t protect us from employees who violate public health orders, knowingly risking our lives to a foreseeable and predictable infection, what “community” do we even have left?

Ridiculously, the court claims that holding employers responsible will actually be worse for society than if we don’t. They suggest that:

“[C]oncluding [employers] owe a duty to the household members of employees  has the potential to alter employers’ behavior in ways that are harmful to society.” 

The court can’t really explain how Victory’s compliance with the county health order would have hurt society. Nor can I imagine any situation in which paid sick leave, paid time off for vaccination, contract tracing, mandatory testing, better indoor air quality, and masking (which construction workers already do in many settings) would harm the public welfare, the courts, or “society.”

This court is COVID ignorant.

Amid all this, you might at least expect the court to understand COVID itself. Instead, the decision shows a shocking lack of basic information about the disease. The decision stresses transmission via droplet though we’ve known since April 2020 that this disease is spread via aerosols. But recognizing airborne transmission would lead to the demand that companies clean their indoor air, which might be “intolerable” for businesses. 

Because they don’t understand how COVID spreads, the justices’ recommendations for mitigation strategies are also irrelevant. The decision lists a range of recommendations for employers to follow to promote workplace safety, such as “social distancing,” a strategy that was quickly known to be inadequate. 

The justices suggest that employers may have lacked a “deeper well of scientific knowledge” about COVID mitigation, but they fail to recognize that this is a result of both willful ignorance (Lots of us were warning by early 2020 that COVID was spread by aerosols and that social distancing was insufficient.) and inaction by our own public health leaders to present accurate information in a timely way. 

What’s so awful about this case?

Given that, following the terrible advice of the CDC, most workers aren’t even trying to protect themselves, why should we care if companies also aren’t trying to protect their workers?

Because the logic of this case sets us up for many bigger problems (yes, even bigger than an ongoing pandemic that your political leaders are lying to you about). 

This decision says:

• Companies can violate local laws and orders that seek to protect the public health when such efforts hinder their ability to make money.
• The more infectious a disease, the less responsible companies are to keep employees safe since keeping them safe is harder.
• The less a company knows about how to keep employees safe, the less responsible they are for doing so.
• The more harm caused by a company’s refusal to mitigate against risk, the less accountability they will face since holding someone accountable for a large amount of wrongdoing is harder than holding them accountable for a little bit of wrongdoing. 
• Even the most minimal efforts to mitigate against risk are now harmful to society.
• The harder it is to determine liability, the less likely courts will be to try to do so.

All of this perversely incentivizes riskier behavior. It motivates companies to:

• Seek profits from actions that violate local laws and orders.
• Do the least mitigation when the risk is the greatest
• Stay ignorant about how to effectively mitigate so they won’t be called upon to implement effective measures
• Ban employees from exercising their own agency to protect their health, as In-N-Out Burgers did within days of this decision
• Spread COVID rather than fight it to ensure that the number of people infected is too high for the courts to manage

This isn’t just about COVID, is it?

Oh, no. 

It’s also about reparations for historical injustices, from slavery to legal segregation to redlining to college legacy admissions. After all, if it’s too hard or costly to figure out who was harmed and how by legal forms of discrimination, then the courts can’t be asked to do this work. 

And it’s also about holding companies responsible for climate change. After all, if climate change liability is too viewed as costly to business or too hard for the courts to manage, then we have one fewer avenue to force companies to change–no matter how high the death toll.

Is that the worst part of this?

The California Supreme Court has told everyday people that when private companies cause problems that are too big for individuals to protect themselves against, then the government will not protect us because those problems are too big. This incentivizes every company to make every problem bigger, so that accountability is impossible.

Kuciembra is an attack on democracy itself. It places the government, by default, on the side of the more powerful player, since the more powerful player will be the one who can do the most damage (and thus, in this model, will not be held responsible.) It signals that the court obeys the will of the most powerful. And when the highest court in a state follows this logic, they reinforce the impossibility of changing anything. This is why:

• banks are “too big to fail”–because if they do, we’ll all sink.
• the military-industrial complex pushes us toward war because war means jobs, and the prison-industrial complex that demands high rates of incarceration to keep prisons open.
• we continue to subsidize businesses that “can’t afford” to stop polluting. These are the very same industries that are setting our globe on fire.
• so-called “public health” leaders who have failed so badly in our COVID response

These folks are already likely to be the winners in a court of law because they can afford better lawyers, better propagandists, and better lobbyists. Kuciemba tells them that their winning strategy will be to break people and our planet irreparably. 

Is that the worst part? Somehow, no.

The worst part is that the Kuciembra decision is an admission that the government cannot address complex problems that harm the majority of Americans. It is an admission of incredible weakness. If it’s true, it’s a sign of a failing government.