In See’s Candies Inc. et al. v. Superior Court of California for the County of Los Angeles, filed in the Court of Appeal of the State of California, Second Appellate District, a California appeals court in early January 2022 refused to grant See’s Candies Inc.’s demurrer in a case involving the death of an employee’s husband from the coronavirus. The lawsuit alleges that See’s insufficient safety protocols led to a worker contracting COVID-19 and transmitting it to her husband, causing his death. The suit claims that California’s Workers’ Compensation Act does not preempt these claims.
In a published opinion, the three-judge panel refused to dismiss the suit filed by Matilde Ek, saying while her own illness may have caused her husband’s injury and death, it is not “collateral to or derivative of it,” so the WCA doesn’t apply. See’s had sought a demurrer in the suit, arguing that the WCA is Ek’s only available remedy for her husband’s death under the derivative injury doctrine, which applies to injuries suffered by third parties.
The appeals court said that the facts of the case do not support applying the derivative injury doctrine. The reason is that because it is possible for a person without symptoms — i.e., one who has not been “injured” — to transmit the disease, Ek’s husband could have contracted COVID-19 even if Ek had not suffered any injury herself, the panel wrote.
Even if the court considers Ek’s infection an injury for the purposes of the WCA, the doctrine would only apply if her husband’s injury was “logically” or “legally” dependent on hers, not just causally dependent on her infection, the panel wrote.
While Ek’s infection may have caused her husband’s death, the panel wrote that she is not suing over her own injuries or any trauma her husband might have suffered from seeing her ill.
The judges added that extending the derivative injury doctrine as See’s suggests would apply to any person injured due to an employee’s injury, not just family members. In effect, this would have created greater protection than the drafters of the WCA intended.
Ek worked on the packing line close to other employees and without proper safety measures when the COVID-19 outbreak struck in 2020. Between March 1 and March 19, 2020, Ek worked without proper social distancing on the packing line. She also was subject to inadequate social distancing while using restrooms and break rooms in close proximity to other workers. It was common for workers to show signs of COVID-19, such as coughing and sneezing.
After becoming infected, Ek stayed home from work. As a result of her confinement at home, her 72-year-old husband and her daughter also became infected with the virus. Ek’s husband passed away a month later, on April 20, 2020.
Ek and her daughters filed a lawsuit with claims against See’s Candies in January 2021. In April 2021, Superior Court Judge Daniel M. Crowley found that the complaint was not subject to workers’ compensation law because it is not about the illness suffered by Ek after contracting the coronavirus, but about her husband’s death because of his exposure to his infected wife.
In September 2021, the U.S. Chamber of Commerce and other business groups showed support for See’s in a document filed with the appeals court. The letter said the WCA is the exclusive remedy for Ek’s and her family’s injuries because they all derive from her alleged infection while working for the company. In response, the court wrote that whatever policy considerations the Chamber raised in its filing are better suited for the legislature than the judiciary.
Joel Krissman, attorney for Ek, said in December 2021 that his client is pleased with the decision. “The Court’s decision is consistent with California Supreme Court precedent allowing such non-employee injury and death claims where it is alleged, as in this case, the Defendant’s negligence was a cause of the injury or damages,” Krissman said. “The Ek family would otherwise have no remedy for this tragic loss when a negligent employer allows a potentially deadly pathogen to spread in its plant which then infects family members, as we have alleged in this case.”
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