Since the onset of the COVID-19 pandemic in March 2020, one of the most hotly contested legal questions has been employers’ liability surrounding the virus. California appeals courts have already ruled on the issue regarding employees whose family members get sick after they contract COVID-19 at work and bring it home. And now, employment law attorneys in the state are awaiting a final determination on that question from the California Supreme Court.

The ruling could have far-reaching legal consequences not only in California, but also potentially throughout the country, as it will resolve a federal appeal on the same issue.

Last month, the Ninth Circuit asked the state’s high court to weigh in on a case brought by a married couple who claim that the husband’s employer forced him to work in close contact with workers who were infected with COVID-19. He says he eventually contracted the virus and brought it home to his wife, who also caught it and was hospitalized for more than a month following respiratory complications.

After the couple brought claims against the employer for negligence, premises liability, and loss of consortium, a federal judge dismissed the case, finding that the claims were barred by California’s derivative injury doctrine. Under that doctrine, the state’s Workers’ Compensation Act is the exclusive remedy “for certain third party claims deemed collateral to or derivative of” an employee’s work-related injuries.” The couple appealed that ruling.

Before making a decision, the Ninth Circuit noted that the appeal “presents issues of significant public importance for the State of California,” and on April 21 asked the California Supreme Court to resolve two questions:

  1. If an employee contracts COVID-19 at his workplace and brings the virus home to his spouse, does California’s derivative injury doctrine bar the spouse’s claim against the employer?
  2. Under California law, does an employer owe a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19?

The California Supreme Court’s coming answers to those questions are of keen importance to CEB contributor Gina Miller, a labor and employment partner at Snell & Wilmer’s Orange County office. CEB spoke with Miller about the significance of the case, and about the broader state of employment law and COVID-19 in California.

What’s the significance of these questions in the California employment law landscape?

I would say it’s incredibly important for employers, because you go into the landscape in California and it’s incredibly regulated to be an employer. Which may be easier for a big employer like a Google, but for smaller employers it’s incredibly expensive to try and keep up with the regulations coming out of Sacramento. With COVID, there were just so many regulations coming out, some changing within weeks or months. So to keep up on all of that is exceedingly difficult for small businesses. This case would open up a boatload of claims, and make it even more expensive to be an employer in California. So I think it has tremendous implications.

What’s your view on whether employers can be held liable in a case like this one?

COVID-19 is a highly transmissible disease. It’s incredibly complicated to know precisely where people pick it up. Just in terms of there’s going to be an assumption that they got it at work…who knows, they could have gotten it on the bus on the way to work. I don’t see a direct injury here. I see it as being far outside the compromise of the workers’ compensation system. It would severely undermine an employers’ ability to start businesses. I feel it’s very difficult to track where people get COVID, so I see that as very hard to be able to prove in a court of law. And I feel like it will open up floodgates of frivolous litigation that will be extremely expensive for new businesses and small businesses. That’s more expense put on the business, which I think is a negative.

Is there any California case law that you think the Supreme Court might look to in ruling on these questions?

Kesner v. Superior Court (2016) 1 Cal.5th 1132 is an interesting case. It’s an asbestos case from 2016. The court found the employer had a duty to the people that lived in the home with the employee. That’s a really tough case to distinguish. I think that case is frankly wrongly decided, because it undermines the Workers’ Compensation Act. You as an employer suddenly owe a duty to people who don’t come into your worksite very day. How is that possible? You have no idea who people live with. Asbestos is something you can usually prevent, but COVID-19 is unstoppable due to it being highly infectious. The California Supreme Court may distinguish the Kesner case on this basis.

There’s also Snyder v. Michael’s Stores, Inc. (1997) 16 Cal.4th 991, where an employee was pregnant, and the employee breathed in some carbon monoxide at the worksite. The allegation was the fetus was injured as a result of being exposed to this at the worksite. I view that as a direct injury. If the California Supreme Court holds in favor of the employer, I think they could cite that case. And there’s Williams v. R.J. Schwartz (1976) 61 Cal.App.3d 628, holding that a nonemployee spouse’s claim is barred by the derivative injury doctrine because of no direct physical injuries on her when she witnessed her husband’s death in a workplace accident and suffered severe emotional distress. This case highlights that you need direct physical injuries; otherwise the third-party claim should be barred under the derivative injury doctrine.

What other California employment law issues related to COVID-19 have you been dealing with over the past two years?

It’s been a roller coaster, because you have things coming out from Cal/OSHA, things coming out from the federal government, really expansive leave laws that go into effect immediately, and employers have all these questions about them. Then it goes away in six months or is reenacted for another six months after that. So it’s a lot to keep up on the daily and monthly changes in COVID-19 regulation and policies, and try to work with employers who really want to follow the law and figure out: How will this work in our business? How can we implement this? The law takes a long time to develop, and with this it was really fast. It’s been really interesting.

Gina Miller is a labor and employment partner in the Orange County office of Snell & Wilmer, a full-service business law firm with more than 450 attorneys practicing in 16 locations throughout the United States and in Mexico, including three offices in California. Gina focuses her practice on all aspects of labor and employment litigation and counseling including defending employers in federal and state courts and administrative industries. Her litigation experience includes complex wage and hour class actions, as well as single plaintiff lawsuits in the areas of discrimination, wrongful termination, retaliation, harassment and breach of contract. Gina can be reached at gmiller@swlaw.com or 714.427.7406.

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