Background
In California, as in all other states, workers' compensation is the "exclusive remedy" for work-related injury and illness. There are some limited circumstances under which the exclusive remedy rule does not apply, and an employee may assert a civil claim against his or her employer for a work-related injury. Exceptions to the exclusive remedy rule under California law are limited and did not apply in this case. If an exception applies, the employee may maintain a civil suit against the employer concurrently with a workers' compensation action.
See's Candies, Inc., and See's Candy Shops, Inc. (collectively, "See's") operated a candy assembly and packing line during the Covid-19 pandemic. Matilde Ek was a See's employee who worked on the packing line. In her complaint, Mrs. Ek alleged that, despite being aware of the highly dangerous and transmissible nature of the virus, See's failed to operate their business safely by putting necessary infection mitigation measures in place. Mrs. Ek alleged she worked without the safety measures through March 19, 2020, until she became infected with Covid-19. Mrs. Ek recovered at her home, where she lived with her husband, Arturo Ek, and one of their daughters. All three became sick with Covid-19, and Mr. Ek died from the disease shortly thereafter.
Mrs. Ek and her daughters sued See's for general negligence and premises liability. See's argued that the plaintiffs' claims were barred by the exclusivity provisions of the WCA, specifically, the "derivative injury doctrine." Because Mr. Ek contracted COVID-19 from Mrs. Ek, who contracted the disease at work, See's argued that Mr. Ek's death would not have occurred absent Mrs. Ek's workplace exposure, and thus was derivative of her work-related illness and subject to WCA exclusivity. The trial court rejected this argument, and See's petitioned for review.
Take-Home COVID Cases Are on the Horizon
The appellate court also rejected that argument, concluding that Mr. Ek's death was not derivative of his wife becoming ill, but was caused directly by the COVID-19 virus, for which his wife served as a "conduit." Mrs. Ek and her daughters were not seeking damages for losses arising from a disabling or lethal injury to Mrs. Ek, but were suing for damages arising from Mr. Ek's death, an event allegedly causally related to Mrs. Ek's alleged virus exposure at work. Addressing the concern that the ongoing pandemic would inescapably lead to unlimited employer liability, the appellate court highlighted that Mrs. Ek and her daughters will still need to prove that See's owed a duty of care to non-employees infected with COVID-19 due to an employee contracting the virus at work. Acknowledging that an analysis of this duty "appear[s] worthy of exploration," the appellate court said the analysis would include an assessment of "public policy concerns that might support excluding certain kinds of plaintiffs or injuries from relief."
As a result, California employers are not shielded from COVID-19 lawsuits brought by employees' family members, but they will have to prove that it was the employer's negligence that caused the illness, and that the virus was not contracted from another source – a tall order for a highly transmissible virus.
Although workers' compensation provides employers with broad protection, that protection is not impenetrable. While this ruling is only binding in California, it may motivate other courts and plaintiffs' lawyers, as this is the first appellate ruling to allow a novel "take-home" COVID-19 lawsuit. Cases like the one brought by the Eks are being tested in courts around the country. There are currently twenty-three "take-home" COVID-19 lawsuits across the United States alleging negligence due to lax COVID-19 protocols by employers.
As the pandemic rages on, employers can expect to see similar claims asserted. It remains to be seen how safety measures such as vaccine and mask mandates will bolster employers' defenses against liability. As businesses return to in-person work, employers must ensure adequate COVID-19 prevention measures, which include following local, state, and federal guidelines and staying up-to-date on changing protocols.
