The Volokh Conspiracy

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Second-Hand COVID Claims Aren't Barred by Worker's Compensation Law


So the California Court of Appeal held three weeks ago, in See's Candies, Inc. v. Superior Court. Generally speaking, worker's compensation laws provide that workers are compensated for on-the-job injury with no need to prove fault on the employer's part—but the flip side of this "worker's compensation bargain" is that they can't sue employers in court for further damages based on such on-the-job injuries.

But what if an employee gets COVID at work, and then the employee's family members (or others) get infected as a result? (Here, a man's wife—who was the one had been allegedly infected at work—and children are suing because the man died after having been infected by the wife.) Can they sue the employer, claiming the employer was negligent in its COVID prevention practices, or are they also blocked by the worker's compensation bargain?

Yes, they can sue, held the Court of Appeal, citing some contagious disease cases from past appellate decisions, and rejecting several recent COVID trial court cases that came down against liability.

The claim of employer negligence, by the way, is that the employer had employees "working without appropriate and necessary social distancing on the packing line" and "using restrooms and break-rooms at times inches [or] only a few feet from other workers, some of whom were coughing [and] sneezing." Naturally, the plaintiff would also have to prove causation, which is often difficult for such airborne illnesses, but might not be so hard given how early in the epidemic this was (March 2020). I think the defendant could also argue that the wife may have been partly negligent as well (depending on the facts), but would just diminish the plaintiffs' recovery, rather than cutting it off entirely.