Lawsuit Breaches Logjam Protecting Employers From Pandemic Liability

Claims by workers who got COVID-19 are routinely buried in state worker compensation plans but one California lawsuit broke through.

Before there were vaccines and life-saving treatments, millions of so-called “essential workers” were forced to go to work every day and many contracted COVID-19 there.

Some suffered severe injuries. Some died.

Employers have managed to avoid liability, even when they did nothing to protect workers, because on-the-job injuries are funneled into state worker compensation plans. These plans pay benefits to injured workers without requiring them to prove fault but, in exchange, preclude workers from filing civil lawsuits seeking damages.

One pandemic-related lawsuit in California has broken through the logjam and it did so in the face of an all-out campaign of opposition by major industry groups led by the U.S. Chamber of Commerce, which insisted the stakes “can hardly be overstated.”

The California Supreme Court recently refused to intervene in a lawsuit filed by Matilde Ek, who says she became infected with COVID-19 while working at See’s Candies after the company failed to ensure workplace safety. Ek says she passed COVID-19 to her husband, who died.

Specifically, CA’s high court declined to review a lower court ruling rejecting See’s theory that claims relating to the death of Ek’s husband are “derivative” and must proceed through the state’s workers compensation system.

Injury Not Derivative

Judge Daniel M. Crowley of the Court of Appeal of CA’s Second Appellate District, ruled the “derivative injury doctrine” of workers compensation is inapplicable because Ek’s lawsuit is based on her husband’s death, which was independent of any physical injury or illness that she suffered.