Do employers face exposure for claims by non-employees for coronavirus contracted from employees?
The California Court of Appeals recently held that an employer can be sued by the estate of a non-employee spouse who passed away from COVID-19 allegedly contracted from his employee-wife who allegedly contracted it at workplace due to the alleged negligence of her employer.
Plaintiffs allege that Mrs. Ek, defendants’ employee, contracted COVID-19 at work because of defendants’ failure to implement adequate safety measures. They claim that Mr. Ek subsequently caught the disease from Mrs. Ek while she convalesced at home. He died from the disease a month later.
The court held the claim by the non-employee’s estate — in other words, the employee and their childrene — was not barred by exclusivity provisions of workers compensation.
Assuming arguendo that Mrs. Ek’s workplace infection constitutes an injury for purposes of the WCA, we reject defendants’ efforts to apply the derivative injury doctrine to any injury causally linked to an employee injury.
As the court opinion itself notes in its detailed analysis, this is not the only court or even the first to address this issue. The courts are currently split on this issue.
Even if not barred by workers compensation, it is noted this kind of claim remains a challenge for plaintiffs who must next prove that the employer was in fact negligent in its efforts to protect its employees, that it owed a duty to non-employees not to be negligent, that the non-employee contracted COVID-19 from the workplace exposure and not simply as part of the on-going pandemic from any number of possible sources we all face everyday now, and that the employer’s negligence was in turn not only a cause but the proximate cause of the non-employee’s death.
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