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The Workers Compensation Act in The Age of Covid-19

As employees began contracting COVID-19 in the workplace, various California and US Federal Courts were presented with a matter of first impression:

Is an employer civilly liable for injuries/death sustained by an employee’s-spouse if the employee-spouse contracted COVID-19 in the workplace and subsequently transferred that infection to their spouse, a non-employee of the employer?

Under the base principles of the Workers’ Compensation Act’s Exclusivity Rule, an employee injured during the ordinary course and scope of his employment is limited to financial recovery for that injury through Workers’ Compensation. This principle, in essence, means that an injured employee cannot recover for their injuries in civil court, only Workers’ Compensation.

Additionally, any further injuries caused by the original workplace injury (e.g., a later infection or death that results from an injury sustained within the course and scope of employment) are also barred under the base principles of the Workers’ Compensation Act’s Derivative Injury Doctrine.

Based on these basic principles, and supporting federal case law, employers may jump to their more favorable determination that they will not be held liable in civil court if their employee contracts COVID-19 and subsequently infects their spouse. See Kuciemba v. Victory Woodworks, Inc. [N.D.Cal., May 10, 2021, No. 3:20-cv-09355-MMC.], holding that the “defendant's duty to provide a safe workplace to its employees does not extend to nonemployees who ... contract a viral infection away from those premises.” See also Estate of Madden v. Southwest Airlines Co. (D.Md. June 23, 2021, 1:21-cv-00672-SAG) 2021 WL 2580119 and Iniguez v. Aurora Packing Company, Inc. (Ill.Cir.Ct., Kane County, Aug. 05, 2021, No. 20 L 372) 2020 WL 4734941, where those courts also dismissed complaints upon a finding that the employers owed no duty to the nonemployee decedents who contracted COVID-19 through the employee-spouse.

However, not all courts have reached this conclusion. Specifically, on December 21, 2021, the California Court of Appeal, Second District, denied a demurrer to dismiss a substantially similar case to the above on the grounds that the Exclusivity Rule and Derivative Injury Doctrine did not automatically bar the plaintiffs’ case. (See’s Candies, Inc., et al. v. Superior Court, Case No. B312241, Certified for Publication.)

In See’s, the employee-wife, Mrs. Ek, contracted COVID-19 at the workplace and subsequently transferred that infection to her husband, Mr. Ek, who later died of the infection. Mrs. Ek and her children then filed suit against See’s Candies for the wrongful death of Mr. Ek under the theory that See’s Candies had negligently failed to implement adequate safety measures to protect against employees contracting COVID-19 at the workplace. In response, See’s Candies filed a demurrer to the complaint, claiming that Mr. Ek’s injuries (death) were barred from recovery under the Exclusivity Rule and Derivative Injury Doctrine because, in essence, the death would not have occurred but-for Mrs. Ek’s injury of contracting COVID-19 in the workplace. However, the See’s Court denied the demurrer, stating that an employee’s injury being the biological cause of a non-employee’s injury does not automatically make a claim derivative of the employee’s injury under the meaning of the doctrine. (See’s Candies, Inc., et al. v. Superior Court, Case No. B312241, Certified for Publication.)

Although the See’s Court in California appears to have departed from the above Federal Courts’ holdings in their denying the demurrer, the See’s Court began its discussion by stating it was not presented with the “duty” argument that was presented in Kuciemba v. Victory Woodworks, Inc, Estate of Madden v. Southwest Airlines Co., and Iniguez v. Aurora Packing Company, Inc. (discussed above).

Specifically, the See’s Court stated: “[b]ecause the parties have framed this writ exclusively to address the applicability of the WCA, we have no occasion to decide whether defendants owed Mr. Ek a duty of care or whether plaintiffs can demonstrate that Mr. or Mrs. Ek contracted COVID-19 because of any negligence in defendants' workplace, as opposed to another source during the COVID-19 pandemic. The parties have not raised these issues, and we decline to address them sua sponte… We express no opinion on the question of duty apart from that it would appear worthy of exploration.” (See’s Candies, Inc., et al. v. Superior Court, Case No. B312241, Certified for Publication.)

Therefore, although it is currently unknown whether the See’s Court would have reached a different conclusion if the Court had been presented with a “duty” argument, employers faced with such a lawsuit should learn from See’s Candies and remove the case to Federal Court, if applicable, and always allege that the employer owes no duty to their employees’ spouses.