February 08, 2022

Slippery Slope Decision by California Appellate Court Allows Wrongful Death Claim from "Take Home" COVID-19 Exposure to Proceed

You've Reached Your
Free Article Limit This Month
Register for free to get unlimited access to all OnPractice content.
Register Now

Key Takeaways

  • 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.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

ALM expressly disclaims any express or implied warranty regarding the OnPractice Content, including any implied warranty that the OnPractice Content is accurate, has been corrected or is otherwise free from errors.

More From Duane Morris

Debt Collection in Myanmar

By LEON YEE Duane Morris March 04 , 2022

The COVID-19 pandemic triggered severe economic shock, particularly in countries like Myanmar that rely heavily on labour-intensive industries. The recent change in the government has added further concerns to the political state of Myanmar.

#MeToo Movement Inspires the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Claims Act

By EVE I. KLEIN Duane Morris March 03 , 2022

In a rare act of bipartisanship and by unanimous voice vote on February 10, 2022, the U.S. Senate passed legislation to eliminate the use of binding arbitration provisions for disputes involving sexual assault and sexual harassment. President Joe Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (HR 4445) into law on March 3, 2022.

Significant U.S. Sanctions Against Russia Create Challenges for Many Companies

By GEOFFREY M. GOODALE Duane Morris March 03 , 2022

Since Russia’s recent recognition of the self-proclaimed independence of two separatist regions of Ukraine and subsequent invasion of the country, the United States and a number of its key allies have sequentially imposed significant sanctions against Russia.

More From Employment Law

GT's The Performance Review Episode 20: All Secrets Revealed: Employee Investigations

By Philip I. Person Greenberg Traurig May 24 , 2023

In this episode, Sue Ann Van Dermyden, co-founder and senior partner at one of the nation’s top investigations firms, joins Philip Person and Ryan Bykerk to discuss the ins and outs of employee investigations.

NYC Passes Bill to Update Human Rights Law to Include Discrimination Based on Height, Weight

By Jerrold F. Goldberg Greenberg Traurig May 24 , 2023

On May 11, 2023, the New York City Council passed Intro 209-A, which would amend the New York City Human Rights Law to include prohibitions on discrimination based on height and weight.

Labor Department Releases New Guidance on Agency Enforcement of PUMP for Nursing Mothers Act

By Patricia Anderson Pryor Jackson Lewis P.C. May 19 , 2023

The U.S. Department of Labor Wage and Hour Division (WHD) has published guidance for agency officials responsible for enforcing the “pump at work” provisions of the Fair Labor Standards Act (FLSA), including those enacted under the 2022 Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act).

Featured Stories