A New COVID-19 Danger to Businesses?
Individuals who contract COVID-19 from a family member who contracted the illness at work can sue their family member’s employer for civil damages.
In See’s Candies, Inc. v. Superior Court, the Court of Appeal for the State of California took up the question of whether an individual who contracts COVID-19 from a family member who contracted the illness at work can sue their family member’s employer for civil damages.
The plaintiffs in See’s Candies included a former employee, her daughter and the estate of her deceased husband. Their lawsuit alleges the employee contracted COVID-19 at work, the daughter and husband contracted the disease while the employee was quarantining at home, and the husband eventually died from the disease. They sought civil damages against the company based on alleged failures to maintain COVID-19 preventative measures, which, they claim, resulted in the employee contracting COVID-19 at work.
Putting other arguments aside, the company argued the claims were preempted by the exclusivity provisions of California’s Workers’ Compensation Act (WCA) (Labor Code §3200 et seq.). In particular, the company pointed to the “derivative injury doctrine,” which generally provides the WCA preempts claims premised on a compensable workplace injury as well as claims premised on injuries “collateral to or derivative of” such injuries. The employer argued further, because the employee contracted COVID-19 at work, the subsequent illness and death of family members would not have occurred absent that workplace injury, such that all of the plaintiffs’ claims should be subject to WCA preemption.
The Court disagreed, relying heavily on Snyder v. Michael’s Stores, Inc. (1997) 16 Cal.4th 991 and its progeny. In Snyder, the Supreme Court refused to apply the derivative injury doctrine to bar claims by a daughter who, while still a fetus in her mother’s womb, was exposed to toxic gases at her mother’s place of work; the child suffered permanent brain and nervous system damages. While both the employee and her daughter were exposed to the same hazardous material and suffered damages as a result, the daughter’s injuries were not dependent on the mother’s workplace injuries. Extending the logic of Snyder to the See’s Candies facts, the Court concluded the employee did not necessarily need to fall ill from COVID-19 to carry the virus from work to her family members at home and, as such, the derivative injury doctrine would not apply.
The Court compared decisions such as Snyder with other decisions where family members’ claims were preempted under the WCA, such as spouses suffering loss of the employee’s services or enduring emotional distress from witnessing the employee’s injuries. In those cases, family members’ claims were preempted under the derivative injury doctrine because the derivative claims “simply would not have existed in the absence of injury to the employee.”
It is worth noting the See’s Candies court referenced rulings in several other states, including New York, Illinois and Maryland, where courts came to opposite conclusions on the question of whether family members’ claims should be preempted by workers’ compensation law. While the See’s Candies court explained those decisions were distinguishable for various reasons, it is clear the approach to such cases is not universal and continues to develop.
The See’s Candies court also pointed out it was not concluding whether the company acted negligently with regard to any particular COVID-19 prevention planning or otherwise failed a duty of care to its employee. Those are questions that still need to be answered in the case, and causation will no doubt be challenged based on the widespread transmission of COVID-19 in community settings outside workplaces during the pandemic.
The See’s Candies case serves as an important reminder about the need for companies to undertake robust pandemic prevention measures to protect workers from the transmission of the virus at work. Beyond simply taking such measures, employers would do well to document their efforts, including the training provided to employees on such measures. This documentation will become important if and when a business is alleged to have failed a duty of care to their employees. Beyond this, the See’s Candies decision may give businesses reason to provide additional guidance to employees about proper quarantining measures when they are sent home, so they can prevent further transmissions to family members away from the workplace.