Non-employees may be able to sue employers for COVID-19 infections that can be traced to the employer’s workplace. A recent California Court of Appeal decision may pave the way for third parties to collect compensation from employers due to COVID-19 infections.
A California Court of Appeal recently allowed a cause of action brought by an employee against her employer for the wrongful death of her husband due to COVID-19 to proceed on the merits. In See’s Candies, Inc. v. Superior Court of California for County of Los Angeles, an employee, Matilde Ek (“Plaintiff”), filed a wrongful death claim against her employer, See’s Candies, Inc. (“See’s”). She alleges that because of See’s failure to take appropriate and necessary health and safety measures to protect employers from a viral infection, she contracted COVID-19 and then infected her husband who eventually died from the disease. Plaintiff further alleges that See’s failed to take sufficient precautionary measures to protect its employees despite the employees’ request for the implementation of new safety and mitigation measures designed to mitigate their risk of exposure to the virus.
Harm suffered while on the job is typically covered by the California Workers’ Compensation Act (“WCA”). WCA establishes an exclusive system of compensation for injuries or death to employees “arising out of and in the course of” their employment, and provides coverage for virtually every employer and employee in the state. It is designed to allow employees to receive medical treatment for on-the-job injuries or illnesses, regardless of fault; in return, WCA prohibits employees from bringing claims against their employer for the injuries. (Labor Code section 3600.)
See’s requested that the trial court dismiss the wrongful death claim and contended that the WCA preempted the employee’s claim based on the “derivative injury doctrine”, which generally bars “certain third party claims deemed collateral to or derivative of the employee’s injury.” For example, a claim by an employee’s spouse for loss of the employee’s consortium or for emotional distress stemming from witnessing the employee’s injuries is usually rejected under the derivative injury doctrine. See’s contended that the derivative injury doctrine applies “when an employee contracts a virus at work, subsequently infects a family member, and the family member dies as a result.”
The Court of Appeal held that the derivative injury doctrine does not apply to the facts at issue. It concluded that while the employer arguably suffered a workplace injury for the purposes of the WCA, the derivative injury doctrine does not extend to separate physical injuries suffered by non-employees. The Court of Appeal rejected See’s invocation of the derivative injury doctrine, denied its petition for writ of mandate, and remanded the case to the trial court to allow Plaintiff to bring her claims against See’s.
The Court of Appeal distinguished the case from Kuciemba v. Victory Woodworks, Inc. In Kuciemba, an employee, Mr. Kuciemba, alleged that he contracted a mild case of COVID-19 in the course of his employment at Victory Woodworks Inc. (“Victory”) and then infected his wife, who suffered severe symptoms. The Kuciembas alleged that Victory had a duty to protect Mrs. Kuciemba from exposure to COVID-19 and was liable for her harm. The district court concluded that the Kuciembas’ claims were barred due to workers’ compensation exclusivity, and further held that the employer had no duty to nonemployees off work premises. Of particular note here, the Kuciemba court acknowledged that Victory had followed official guidance for best practices in reducing the spread of the virus.
While there are meaningful procedural differences to these cases – a federal district court dismissed Kuciemba for failure to state a claim, whereas the California Court of Appeal denied a writ of mandate to vacate an order overruling a demurrer in See’s – there are many factual similarities. The key factual distinction between the cases, according to the Court of Appeal, was that Victory effectively implemented COVID-19 safety and mitigation measures. While this distinction may not have been determinative, the Court of Appeal’s decision in See’s nevertheless highlights the possible consequences for employers who fail to implement adequate health and safety measures aimed at reducing the risk of exposure and transmission.
For full summaries of See’s and Kuciemba see: