A blog we published here on May 28, 2020, correctly noted that California’s workers-compensation laws may immunize employers from most civil lawsuits alleging that employees became infected with the coronavirus on the job.  That blog also correctly emphasized that other types of lawsuits may spread from lax pandemic protocols.  This week the California Court of Appeal issued a unanimous three-judge decision outlining a potential path for workers and their families to get around workers-compensation immunity and maintain a possible new strain of civil actions.

That published and precedential decision (available here) holds that workers-compensation preemption does not inoculate an employer against a wrongful-death lawsuit filed by an employee who alleges wrongful death of a family member.  At the same time, however, California’s Second Appellate District (in Los Angeles) forecast that its decision will not cause a rash of similar civil actions because the employee’s lawsuit might likely be infirm for other reasons that the employer did not inject into its defense at the early stages of the litigation.

In that case, the employee claims that she contracted COVID-19 on the job due to her employer’s lax safety protocols and transmitted it to her husband, causing his death.  Specifically, the employee avers that her employer failed to enforce proper social distancing rules while she worked on a packing line and used restrooms and break rooms on the job in close proximity to other workers in March 2020.  She further alleges that some of her co-workers were coughing, sneezing and showing other signs of COVID-19 infections.  According to her lawsuit, after becoming infected, the employee stayed home from work and, consequently, her 72-year-old husband and her daughter caught the virus and her husband died from it in April 2020.

The employee and her daughters sued the employer, who filed a motion to dismiss the claims on the basis of workers-compensation preemption.  The trial court denied the motion and the employer appealed.  The appellate court noted that, while the employee’s infection may have caused her husband’s infection, she was not suing over her own injuries.  Moreover, she was not suing for any distress her husband might have experienced from seeing her ill.

The Court of Appeal went on to explain that workers-compensation preemption does not apply because, while the husband’s injury and death may have been caused by the employee’s own illness, it was not “collateral to or derivative of it.”  The appellate panel reasoned it is possible for an employee to become infected without experiencing symptoms of the illness, and that such an employee has not been “injured” but may still transmit the disease to a family member or others.

Even if it could be said that the asymptomatic employee’s infection was an injury to her for purposes of workers-compensation preemption, the court elaborated that the claim by her husband’s family would be preempted only under certain circumstances that seemingly did not exist.  In particular, the claim would be preempted only if the husband’s injury was “logically” or “legally” dependent on employee’s injury, not just causally dependent on her infection.

In reaching its conclusion, the appellate court was persuaded that extending preemption to the circumstances in front of it would mean that preemption would apply to any person injured as a result of an employee’s work-related infection, not just the infected employee’s family members.  According to the court, that would expand the preemption shield far wider than the Legislature intended.

Nonetheless, the Court of Appeal projected that its decision will not trigger the spread of such lawsuits, since it is questionable whether the employer owed a duty of care to the employee’s husband.  The appellate court declined to dismiss the employee’s lawsuit on such lack-of-duty grounds because none of the parties had raised that point previously in the litigation – presumably the employer will inject that defense when the case is remanded to the trial court.

Regardless of whether such a duty exists, California employers should refrain from violating or directing their employees to violate governmental shelter-in-place, social-distancing, sanitary or PPE restrictions or regulations.  Obtaining early legal advice about compliance with government mandates also may decrease the frequency or cost of these exorbitant types of lawsuits.