Slippery Slope Decision by California Appellate Court Allows Wrongful Death Claim from "Take Home" COVID-19 Exposure to Proceed
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- The California Court of Appeals has allowed an employee’s wrongful death case for her husband’s death from COVID-19 to proceed against her employer, concluding the claim was not barred by the California’s Workers’ Compensation Act (WCA).
- Matilde Ek brought a wrongful death claim against her employer for her husband’s death, claiming the company failed to take proper precautions to prevent the spread of COVID-19
The California Court of Appeals has allowed an employee's wrongful death case for her husband's death from COVID-19 to proceed against her employer, concluding the claim was not barred by the California's Workers' Compensation Act (WCA). In March 2020, plaintiff Matilde Ek alleges she contracted COVID-19 at her place of employment, See's Candies, Inc., sometime between March 1 and March 19, 2020, while working on the packing line. Ek claims she and other co-workers contracted the disease from co-workers who were coughing and sneezing on the packing line and in other facilities at the factory. On March 19, 2020, Ek became ill with COVID-19. On March 22, 2020, both the plaintiff's husband and daughter were diagnosed with COVID-19. Mr. Ek died approximately a month later.
Matilde Ek brought a wrongful death claim against her employer for her husband's death, claiming the company failed to take proper precautions to prevent the spread of COVID-19. Ek v. See's Candies, Inc., California Court of Appeals, Second Appellate District, Division One, No. 20STCV49673. See's Candies filed a demurrer, arguing that the wrongful death claim was preempted by the exclusivity provisions of the WCA (Lab. Code, 1 § 3200 et seq.), under the derivative injury doctrine. The trial court denied the demurrer, and See's filed a writ of mandamus with the California Court of Appeals. The Court of Appeals, Second Appellate District, Division One, upheld the trial court's decision, allowing Ek's claim to proceed in what is the first case for "take home" exposure to COVID-19 against an employer. Ek could have far-reaching implications for employers throughout the country.
See's Candies argued that Ek's claim was derivative of her employment because it would not exist absent injury to the employee. Because the plaintiff alleges Mr. Ek contracted COVID-19 from Mrs. Ek, who in turn contracted the disease at work, defendants contend Mr. Ek's death would not have occurred absent Mrs. Ek's workplace exposure, and thus was derivative of her work-related injury. Thus, See's argued that Ek's claim was barred by the WCA's exclusivity. The California Court of Appeals disagreed, noting that the fact an employee's injury is the biological cause of a nonemployee's injury does not render the nonemployee's claim derivative of the employee's injury. The Court of Appeals noted that ruling otherwise would shield employers for liability in ways the WCA could not have intended. The court found persuasive the trial court's analogy to a decision permitting claims against employers for injuries to family members from "take home" exposures to asbestos in Kesner v. Superior Court, 1 Cal.5th 1132 (2016).
The Court of Appeals limited its decision to the issue of the WCA exclusivity argument. The parties did not address the employer's duty of care to third parties, such as Mr. Ek, nor did they address the causal connection between any alleged negligence of the employer and Mr. Ek's development of COVID-19. As a result, the Court of Appeals declined to address these issues, leaving them to be litigated. The Court of Appeals also noted that "the unique factual and legal issues presented by the ongoing pandemic will not inexorably lead to unlimited liability." The Court of Appeals noted that public policy concerns might support excluding certain kinds of plaintiffs or injuries from relief, including for the transmission of COVID-19. Nevertheless, based upon its finding that the WCA's exclusivity did not bar the claims, it is questionable whether or not the trial court will preclude the claim from proceeding based upon public policy.
The allegations in the Ek case arise from early in the pandemic, when little was known about how COVID-19 is transmitted or how to prevent its spread. The country had not yet shut down nonessential businesses and no vaccines existed in early March 2020. As such, it may be very difficult for Ek to show that See's was negligent in the same vein that an employer in this day and age would likely be for failing to follow established protocols for employee safety when coming in contact with asbestos. Employers who now follow CDC guidance, local COVID-19 regulations and who require vaccinations, masking and social distancing should be able to show they are not negligent in "take home" exposure and spread of COVID-19 to employees' family members. In addition, employers have several defenses to such claims, including evaluating other possible sources of exposure to COVID-19 and efforts made in the employee's home to isolate from family members following exposure to the virus.
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