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How long can the grand bargain of workers’ compensation survive if my quid starts to outweigh your quo? That’s the question some California stakeholders are posing in the face of a wrongful death lawsuit currently winding through the state’s courts. The case presents a novel question of tort immunity for a workers’ comp community still adapting to the COVID-19 pandemic. However, the question may not be new.

See’s Candies is a San Francisco Bay Area confectioner known for its black-and-white color scheme and generous free samples. In the early days of the pandemic an employee at the company’s plant in Carson, California, Matilde Ek, contracted COVID-19. While she recovered at home, she allegedly transmitted the virus to her 72-year-old husband, Arturo. Although Matilde recovered, Arturo succumbed to the disease in April of 2020.

Ms. Ek filed a suit for wrongful death damages against See’s in the Superior Court for Los Angeles County. She claimed the company failed to implement proper social distancing and/or other reasonable safety precautions, despite obvious signs of COVID-19 among its workers. See’s acknowledged that Ms. Ek’s illness was related to her employment, but argued that it is protected from liability for Mr. Ek’s death because Ms. Ek’s exclusive remedy is in workers’ compensation.

The trial court disagreed and allowed the suit to proceed. (See Matilde Ek et al. v. See’s Candies Inc. et al., docket number 20STCV49673, Superior Court of California, County of Los Angeles). As the case moves to the appellate courts, some California stakeholders argue that if the trial judge’s ruling stands, it will “undermine a bedrock principle of the workers’ compensation system” and “could subject employers across the state to potentially unlimited tort liability.”  Walters, D. (2021, September 1). Walters: Will See’s Candies Case Undermine Workers’ Comp ‘Grand Bargain’? GV Wire – Explore. Explain. Expose. Retrieved September 20, 2021, from https://gvwire.com/2021/09/01/walters-will-sees-candies-case-undermine-workers-comp-grand-bargain/.

But is the Ek decision really new law for Californians?

This is not the first time California employers have faced tort liability arising from the job-related death of an employee’s spouse. In Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1140, the California Supreme Court considered whether employers or landowners owe a duty of care to prevent secondary exposure to asbestos, aka “domestic or take-home exposure.” The court answered the question affirmatively, finding it is “reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the premises to household members [and that, therefore] employers have a duty to take reasonable care to prevent this means of transmission.”

On the heels of Kesner, the court reached the same result in Beckering v. Shell Oil Co., Calif. Ct. App., No. B256407 (June 2, 2017). In Beckering, the wife of the defendant’s long-time employee claimed she developed mesothelioma due to exposure to asbestos fibers that her husband carried home on his clothing. Once again, the court imposed a duty on the defendant employer to protect the plaintiff from secondary exposure to asbestos, despite the fact that she was not employed by the company nor had she ever been on its premises.

In the wake of the current pandemic, it does not take a great leap of judicial logic to extend the Kesner/Beckering rationale to Ms. Ek’s claim. If employers owe a duty to protect an employee’s spouse from asbestos fibers carried home on their clothing, why wouldn’t the same duty require See’s Candies and other employers to enact reasonable measures to mitigate the spread of COVID-19 from employees to their spouses?

But policymakers have already mandated a substantial amount of new responsibility for the pandemic on the employer community. Historically, occupational diseases have been compensable only where they are “peculiar” to a particular occupation. COVID-19 may fall short of that definition by its very nature. Prior law notwithstanding, legislators and/or executives in many jurisdictions have utilized evidentiary presumptions to expand the historic boundaries of compensability. As a result, COVID-19 infections that arguably resulted from “community spread” are presumed compensable in workers’ compensation.

Whether courts in California or elsewhere elect to expand employer liability for COVID-19 to include not only comp benefits for infected employees but also tort damages to the relatives of infected employees (and potentially the public at large), remains to be seen. Like all things COVID, whatever the answer turns out to be, it is ripe with controversy. If they do, it will remain to be seen if the “grand bargain” can absorb another level of pandemic liability.

– Patrick Fox Robinson, Vice President of Government Affairs, ODG by MCG

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