Workers' Comp Rule Doesn't Bar Employee's Suit for Spouse's COVID-19 Death

​An employee claimed that she contracted COVID-19 at work because her employer did not take sufficient safety measures and that her husband died from the disease after catching the virus from her. A California appellate court ruled that the employee was not barred by the California Workers' Compensation Act (WCA) exclusivity rule from bringing a wrongful death action against the employer.

That rule provides that the exclusive remedy for an injury to an employee arising out of and in the course of employment is the right to recover workers' compensation benefits.

The appeals court found that the "derivative injury doctrine" set out in Snyder v. Michael's Stores Inc., a 1997 California Supreme Court case, did not apply on these facts. That doctrine provides that the WCA's exclusivity provision bars not only those lawsuits based on a compensable workplace injury, but also those claims based on injuries "collateral to or derivative of" such an injury.

Because the employee here claimed that her husband became infected with the coronavirus from her and that she contracted the virus at work, the employer argued that the husband's death would not have occurred absent his wife's workplace exposure and thus was derivative of her work-related injury. The employer therefore argued that the employee's claims are subject to workers' compensation exclusivity. The trial court rejected this argument, and the employee sought appellate review.

The appellate court agreed with the trial court. Assuming, it said, that the employee's workplace infection constitutes an injury for the purposes of the WCA, it rejected the employer's efforts to apply the derivative injury doctrine to any injury causally linked to an employee injury.

Derivative Injury Doctrine          

Third-party injuries are not subject to the derivative injury doctrine merely because they are caused by an employee injury, the appellate court stressed.

Throughout the Snyder opinion, the court said, the Supreme Court referred to collateral or derivative claims as those that are "legally" or "logically" dependent on an employee's injuries.

The Snyder court made clear, however, that "logical" or "legal" dependence is not equivalent to causal dependence. In cases where the doctrine applied, the third-party injuries were not only causally linked to an injury occurring to another person, but they were also based on losses arising simultaneously from that injury—the directly injured party is disabled or killed, which in turn deprives close relatives of the injured party's support and companionship, the court explained.  

It is legally impossible, the court said, to state a cause of action for such claims without alleging a disabling or lethal injury to another person.

The court noted that a construction of the derivative injury rule premised solely on causation would bar civil claims by any person injured as a result of the employee's injury, family member or not.

To take an extreme example, the court said, imagine that a researcher in a laboratory studying dangerous pathogens inadvertently becomes infected due to the employer's lax safety protocols. That researcher then boards a bus home and infects all the passengers with a lethal virus. Under the employer's interpretation of the derivative injury rule, the passengers, whose illnesses would not have existed in the absence of injury to the employee, would be barred from asserting civil claims against the laboratory, the court said.

Therefore, the appellate court concluded that the derivative injury doctrine did not apply to this case. The employee is not seeking damages for losses arising from a disabling or lethal injury to her. Instead, she is suing for damages arising from her husband's death, an event possibly causally related to her alleged infection by the virus in the workplace, but, under California law, not derivative of that infection.

See's Candies Inc. v. Superior Court, Calif. Ct. App., No. B312241 (Dec. 21, 2021).

Professional Pointer: The court ruled only that the lawsuit was not barred by the workers' compensation exclusivity doctrine. It did not address whether the employer owed a duty of care to its worker's husband or whether the employee could show that either she or her husband contracted COVID-19 because of any action or inaction by the employer. To win her wrongful death lawsuit, the employee must still prove that the employer was negligent.  

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.