The interaction between workers’ compensation law and personal injury law is complex, and it can work to the detriment of employees. Injured workers are typically limited to workers’ compensation, which offers only limited remedies, even if their employer’s negligence caused their injuries. In the COVID era, that means employees can be stuck with only medical bill coverage and a portion of their lost wages, even if their employer’s poor safety protocols directly caused them to get sick. A few recent cases have, however, found a loophole to the employer’s protection from liability: What if it’s not just the employee who gets sick?

Workers’ compensation law is meant to protect employees in the event of a workplace illness or injury. Employees do not need to prove that anyone was negligent to collect workers’ comp benefits; indeed, they can obtain coverage even if the injury was caused by their own mistake. The trade-off is that workers’ comp offers much more limited remedies than a traditional personal injury lawsuit. Workers can recover their medical costs and two-thirds of their wages lost while recovering; in a personal injury suit, they could seek all of their lost wages, medical costs, and additional damages like pain and suffering.

Employee claims against their employer after a workplace injury are limited to workers’ comp, rather than traditional personal injury, even if the employer’s violation of safety protocols led to the injury. Many employers forced employees to go back to work while the pandemic continued, failed to provide masks and other personal protective equipment, and failed to enforce sanitation and social distancing rules. Many sick workers, in turn, felt those employers got off the hook too easily.

Unlike a slip-and-fall at work, COVID-19 can affect more than just the employee. Upon that foundation, some aggrieved families have sought a workaround to the traditional limitations of the workers’ compensation rules.

For example, See's Candies, Inc., et al. v. Superior Court of Los Angeles (Matilde Ek, et al.) involves a wrongful death claim brought against See’s for the death of a non-employee. The plaintiffs contend the death was caused by COVID-19, which the decedent contracted from his spouse, an employee of See’s Candies. According to the complaint, the employee’s infection was, in turn, caused by See’s failure to implement appropriate social distancing and other safety measures.

See’s attempted to have the claim dismissed based on the exclusivity provisions of California’s Workers’ Compensation Act (WCA). The WCA bars claims by employees for workplace injuries as well as claims derivative of those injuries. Typically, the derivative injury doctrine covers things like loss of companionship and other emotional damage caused by the injury or loss of a loved one.

The trial court refused to apply the derivative injury doctrine, and the appellate court agreed. The California appeals court held in no uncertain terms that “the fact an employee’s injury is the biological cause of a nonemployee’s injury does not thereby make the nonemployee’s claim derivative of the employee’s injury.” Parties that suffer injuries "logically and legally independent of any employee's injuries" are not limited by the workers’ compensation rules. Even though it was causally related to the employee’s injuries, the actual claim here was premised solely on the damage done to the non-employee spouse.

The decision does not render See’s automatically liable. The opinion did not address whether the employer owed a duty to the deceased party or whether the parties can prove the employee contracted the coronavirus at work (or as a result of the employer’s negligence). The court’s opinion was strictly limited to application of the WCA.

The California appeals court noted several other jurisdictions that agreed with their reasoning. Concurring opinions include a Sixth Circuit opinion allowing the spouse of a VA nurse to sue based on hepatitis the employee contracted at work as well as a Louisiana state appeals court that permitted a woman to sue a hospital based on HIV she contracted from her husband, a hospital security guard who was infected by a patient at the hospital. The court summarily rejected a contrasting opinion from the federal Northern District of California, noting that the state court was “not bound by federal district court rulings” and that, in any event, the dismissal orders in that matter were “conclusory, with no explanations or discussion of relevant authority” providing “no basis upon which to question our holding.”

The Northern District of California opinion, as well as other cases cited by See’s, indicate there may be a split among different jurisdictions as to how workers’ compensation and “take-home” COVID-19 cases will proceed in the future.