COVID-19 Workplace Liability May Include Workers’ Comp. and Torts

Carissa Davis

A recent California appellate court decision provides insight into the surprising reach of employers’ liability with respect to employee COVID-19 infections.

In See’s Candies, Inc. v. Superior Ct. of Cal., 73 Cal.App.5th 66 (App. 2d Dist. 2021), the court held that an employee could bring a wrongful death claim against her company for the death of her husband, who did not work for the company. The employee alleged her company’s COVID-19 prevention measures were inadequate, causing her to be exposed and infected at work. The employee then unknowingly exposed her husband, he contracted it, and died.

The company sought to have the employee’s claim dismissed, arguing this scenario was more appropriately addressed as a derivative injury under state workers’ compensation law. The lower court held—and the appellate court affirmed—that the mere fact the husband’s death was causally related to the employee’s exposure was not enough to trigger the derivative injury doctrine, which would have otherwise precluded the wrongful death tort and forced the family to redress their grievance through the workers’ compensation system.

The See’s decision demonstrates that the attenuated connection between COVID-19 illnesses of employees’ family members could result in costly litigation for the employer. The potential liability is not limited to California. To provide just one example, Colorado has permitted an analogous suit in the past. See e.g. Horodyskyj v. Karanian, 32 P.3d 470, 474 (Colo. 2001) (husband and wife could bring various tort claims against husband’s employer for sexual harassment he endured at work, and workers’ compensation did not preclude such claims.)

Workers’ compensation is usually the exclusive remedy for work-related injuries. Generally, this provides certainty and relative speed to resolve claims. Conversely, tort claims are time-consuming, have potential big payouts, and are often decided by juries sympathetic to an injured, ill, or grieving plaintiff. So the prospect of tort claims that are not precluded by the workers’ compensation system should give pause.

In the wake of the United States Supreme Court’s decision halting OSHA’s emergency temporary standard (“ETS”), which required certain employers to implement mandatory vaccination policies or vaccine or test policies, many employers have pumped the brakes on implementing comprehensive COVID protocols. The Court halted enforcement of the ETS should not signal that employers are free to proceed without any safeguards. Employers may still face liability for workers’ compensation claims due to work-related COVID infections. Moreover, as we saw in See’s, employers may also face tort lawsuits for infections brought home. In the future, some states may pick up OSHA’s cause and implement requirements similar to the ETS.

Workers’ compensation or tort claims present difficult problems of proof of causation for employees. Nevertheless, if all safeguards are ignored, an employer may face significant defense costs in litigation, even if the employer ultimately prevails. Finally, in this labor economy, employers must do what they can to keep their existing workforce healthy and happy. Suffice it to say there are a myriad of important reasons why employers should take reasonable, appropriate action to mitigate COVID-19 spread in the workplace. Those efforts may include mandatory vaccination, masking, social distancing, or other measures to reduce the risk of the spread of COVID-19.