While employers generally understand that they owe a duty to maintain the safety of their employees while those employees are in the scope of their employment, can an employer be responsible for the health, welfare and safety of an employee’s family? As a result of the COVID pandemic, that question has become a hot button issue as California courts have been inundated with cases involving workers who are exposed to the COVID virus at work and brought the virus home, thereby exposing family members.
While an employer will probably ask, “how can I be responsible for my employee’s family getting sick” at least one California court of appeal has ruled that employers can be held liable for a family member contracting COVID from an employee who allegedly contracted the virus at work. The Court of Appeal of the State of California, Second Appellate District, in See’s Candies, Inc. v. Superior Court, 73 Cal. App. 5th 66 (2021) (“See’s”), ruled just that in December 2021.
See’s presented facts generally consistent, albeit arguably with a more severe injury to the family member, with many of the cases that have been filed. Matilde Ek worked for See’s Candies on an assembly and packing line producing candy. Mrs. Ek alleged that she contracted COVID due to See’s Candies’ failure to provide proper safeguards such as social distancing. After contracting COVID, Mrs. Ek convalesced at home where she allegedly exposed her daughter and husband to the virus. Both the daughter and Mr. Ek contracted COVID. Mr. Ek, after struggling with the illness, died less than a month later.
Mrs. Ek and her daughters’ suit against See’s Candies is premised upon general liability and premises liability claiming that See’s Candies was responsible for the wrongful death of Mr. Ek. See’s Candies demurred to the complaint, seeking dismissal under a theory that the claims were preempted by the Workers’ Compensation Act (the “WCA”) as Mr. Ek’s death was derivative of Mrs. Ek’s work-related injury – i.e., their recovery was limited to that afforded by a workers’ compensation claim. The trial court overruled See’s Candies’ demurrer finding that Mr. Ek’s death was not derivative of Mrs. Ek becoming ill with COVID but could have existed regardless of whether Mrs. Ek had become ill.
See’s Candies, supported by several trade organizations including the Chamber of Commerce of the United States, appealed the trial court’s ruling. As See’s Candies had argued before the trial court, the primary premise of the appeal was that the wrongful death claims were derivative of Mrs. Ek’s workplace illness and, therefore, the WCA provided the exclusive venue for those claims. While conceding that the WCA could provide the sole remedy for certain injuries to family members directly resulting from the employee’s work-related injury (such as the death of the employee, loss of income, loss of consortium or emotional distress caused by witnessing the employee’s injury), the Court of Appeal ruled that third-party injuries are not automatically derivative merely because they are caused by the employee’s injury or illness and, based upon the allegations contained in the complaint, Mrs. Ek and her daughters’ claims were not derivative of her COVID illness.
While See’s Candies and its supporting trade organizations pointed the Court of Appeal to several trial court rulings from other jurisdiction (including at least one from a Federal District Court in California applying California law – Kuciemba v. Victory Woodworks, Inc.), the Court of Appeal relied heavily upon a 1997 California Supreme Court decision, Snyder v. Michael’s Stores, Inc., 16 Cal. 4th 991 (1997), as the basis of its ruling. Nevertheless, Snyder may not be directly on point as evidenced by the United States Court of Appeals for the Ninth Circuit’s recent Kuciemba v. Victory Woodworks, Inc. (“Kuciemba”) decision (an appeal of the District Court ruling that the See’s court refused to accept as precedent). Like See’s, in Kuciemba the plaintiffs claim that an employee spread the COVID virus that he contracted at work to his spouse who suffered significant injury as a result. While the Kuciemba court concedes that the See’s decision dealt with “essentially identical facts”, the Ninth Circuit determined that, although instructive, See’s did not provide clear guidance. In fact, the Kuciemba court determined that there was no controlling California precedent on the issues of: (1) whether an employer owes a duty to the households of its employees to prevent the spread of COVID?; and, (2) whether a spouse’s claim of injury resulting from an employee’s workplace exposure to COVID is derivative of the employee’s injury? Therefore, the Ninth Circuit determined that those questions should be decided by the California Supreme Court and asked the California Supreme Court to do so.
So, while See’s Candies has not yet appealed the See’s decision, the Ninth Circuit may have effectively forced the California Supreme Court to decide whether the multitude of currently pending cases involving the alleged spread of the COVID virus from employees to their family members, including See’s, are viable. Even if your business has not been involved in a lawsuit like See’s and Kuciemba, the California Supreme Court’s response to Kuciemba may have profound ramifications for not only the existing and future COVID-related cases, but to any claim by third parties for injuries related to a workplace injury or illness. While most common types of third-party injuries (the death of the employee, loss of income, loss of consortium, etc.) will remain within the exclusive jurisdiction of the WCA, should the California Supreme Court rule consistently with See’s, we could see a broadening of exceptions to that exclusivity.
We at TALG eagerly await the California Supreme Court’s response to Kuciemba court’s certified questions and will report back as soon as the California Supreme Court responds.