The See's Candies Decision: Employers May Be Liable for Third-party Covid Damages Traced Back to Their Employees
| Publication year | 2022 |
| Author | THOMAS A. RICHARD, ESQ. |
THOMAS A. RICHARD, ESQ.
OAKLAND, CALIFORNIA
The Covid-19 pandemic has been very challenging and risky for California employers. They face the difficulties of maintaining a safe work environment while complying with ever-shifting regulatory requirements, as well as a rise in Covid-related workers' compensation claims, including some presumed compensable claims. Now employers face yet another challenge: the risk of civil liability when third parties, particularly employees' household members, are exposed to ill employees. A new California Court of Appeal decision has opened the door to "take-home liability" for workplace-acquired Covid illnesses and challenged the "exclusive remedy" defense, which has long shielded employers from separate civil court damages that originate from industrial injuries.
Nationally, the exclusive remedy rule generally bars the filing of liability lawsuits against employers by injured employees and their family members. Instead, workers' compensation benefits are understood to be the exclusive remedy available to an employee and to their family members who claim damages that derive from that on-the-job injury. However, California's Second District Court of Appeal rejected the exclusive remedy defense in a Covid wrongful death case, Matilde Ek et al. v. See's Candies Inc., et al. (2021) 87 Cal.Comp.Cases 21. Instead, employee Matilde Ek was allowed to sue her employer for the alleged Covid-related death of her husband. The case could have significant ramifications in California, if not nationally.
Plaintiff-employee Matilde Ek claims to have contracted Covid at work due to defendant See's Candies' alleged failure to implement adequate safety measures. While convalescing at home, Ms. Ek is alleged to have passed Covid to her nonemployee husband, who died from the disease a month later. Ms. Ek then sued See's on behalf of herself, their children and her husband's estate.
See's filed a motion to dismiss the lawsuit, asserting that plaintiffs' claims were barred by the "derivative injury doctrine," which is part of the exclusive remedy rule. The derivative injury doctrine establishes workers' compensation as the exclusive remedy for claims that derive from an employee's workplace injury. This means
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that if See's had prevailed, plaintiffs would not have been allowed to proceed with a separate wrongful death suit. Instead, the remedy would be...
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