Just when California employers thought things could not get any worse…
In See’s Candies, Inc. v. Superior Court, the California Court of Appeal addressed the question of whether a family member of an employee who contracted COVID while at work can sue their family member’s employer for damages. The Court’s answer? A resounding “Yes.”
The Facts of the See’s Candies Case
The employee alleged that she contracted COVID while at work at a See’s Candies plant, at a time when the employer was “aware of the highly dangerous, contagious and transmissible nature” of the virus. Yet, according to the employee, See’s Candies still required her and other employees to work and interact “in close proximity to each other.” As a result, the employee claimed, she and other co-workers became infected with COVID.
Unable to work as a result of her illness, the employee quarantined at home, where she resided with her husband and two daughters. Within a few days of being at home, the employee’s husband and one of her daughters became sick with COVID. Within a month, the employee’s husband died from COVID complications, and the employee and her daughters sued See’s Candies for civil damages due to negligence.
The Derivative Injury Doctrine
See’s Candies attempted to defend itself from the lawsuit by claiming that all of the claims were preempted by workers’ compensation. See’s Candies argued that, because the original illness that caused the death was itself covered by workers’ compensation, the husband’s illness and ultimate death was also covered by worker’s compensation under the “derivative injury doctrine.” As a result, See’s Candies argued, the lawsuit should be dismissed and the husband’s family should be paid through the workers’ compensation system.
The Court’s Analysis
The Court disagreed. The Court ruled that the “derivative injury doctrine” did not apply to this case because the husband’s illness was not dependent on the employee’s illness. According to the Court, because viruses like COVID can be transmitted before symptoms appear, “persons need not themselves suffer adverse health impacts in order to transmit a virus.” Thus, the Court concluded, viral transmission to the husband in this case “did not depend on” any injury to the employee. The employee eventually suffered symptoms from COVID, but those “were not the but-for cause of the viral transmission” to the husband. Therefore, the “derivative injury doctrine” does not apply to preempt the husband’s estate’s claims, and the lawsuit was allowed to proceed against the employer in court rather than through workers’ compensation.
What California Employers Should Do Now
The See’s Candies decision serves as an important reminder for California employers to (a) strictly follow all Cal/OSHA and other agency COVID workplace regulations, (b) implement robust COVID testing, prevention, and isolation protocols in order to ensure the safety of employees, and (c) document all COVID protocols in order to provide the company with evidence that it acted responsibly and non-negligently.
You can read the Court’s decision in See’s Candies here.
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