CA Businesses May Be Held Liable for Worker’s COVID-19 at Work

Author: Sheila Baker

Guest Editor: Grace Shuman

Related Articles: COVID-19, California, Workers Compensation

View More: Search articles by topic

July 12, 2022 12:45pm


In the ever-developing case law addressing liability for the spread of COVID-19, a well-known candy maker’s petition was denied based on a ruling the business could be sued by an employee who claims the decedent was exposed to COVID-19 because his wife brought it home from work.  The ruling impacts the potential liability of businesses for COVID exposure to employees and employee family members.

The ruling also weakens the preemption of the “derivative injury doctrine” under the Worker’s Compensation Act’s (“WCA”).  Under the WCA, the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability.[i]  That is, worker’s compensation is the exclusive remedy for on the job injures such that an employee and others cannot pursue civil damages from employer – damages are limited to worker’s compensation benefits.  This is known as the “derivative injury doctrine.”


The Facts in See’s Candies, Inc. v. Superior Court of California for the County of Los Angeles

On December 30, 2020, plaintiffs, the wife and daughters of decedent, Mr. Ek, filed a complaint against the candy maker claiming that its candy assembly and packing line required its employees, including Mrs. Ek, to work in close proximity with others, despite employee complaints about exposure to COVID-19 given the workplace conditions.[ii]   Although the high risk of spreading COVD-19 is widely known, defendant failed to make any changes.[iii]  Plaintiffs’ claimed that defendant’s failure to put in place safety measures resulted in her husband being exposed to COVID-19 which Mrs. Ek brought home from work.[iv]  While she was at home, her husband got sick with COVID-19 and died.[v]

Defendant argued plaintiffs’ claims were preempted by the “derivative injury doctrine” under the WCA’s exclusivity provisions.  Those provisions preempt not only those causes of action premised on a compensable workplace injury, but also those causes of action premised on injuries collateral to or derivative of such an injury.[vi]

Notably, this is not the first case where California courts have been asked to rule outside the preemption of the derivative injury doctrine.  In fact, the courts have held an employer liable for injuries to an employee’s family members caused by asbestos fibers on the employee’s clothing.[vii]  The courts have also held an employer was liable for injury to a child in utero from exposure to hazardous chemicals brought home by an employee, the father.[viii]

In the See’s Candies case, the appellate court agreed with the trial court: the WCA did not preempt plaintiffs’ claims and found See’s could be held liable for Mr. Ek contracting COVID-19.  The court reasoned that injury to Mrs. Ek was irrelevant to plaintiffs’ claims, as it was Mr. Ek’s exposure to the COVID-19, brought home by his wife, which caused Mr. Ek’s injury.[ix]



The appellate court’s denial of See’s appeal suggests a business may be held liable for failing to follow safety measures in the prevention of the spread of COVID.  It also weakens the application of the derivative injury doctrine.  Notably, the California Supreme Court, in the matter of Kuciemba v. Victory Woodworks, Inc., No. 21-15963, has pending before it two questions that will address these topics:

(1) If an employee contracts COVID-19 at his workplace and brings the virus home to his spouse, does California’s derivative injury doctrine bar the spouse’s claim against the employer?

(2) Under California law, does an employer owe a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19?[x]

The California Supreme Court’s decision may create a clearer guide for businesses in these unprecedented times.  In the interim, businesses will want to take steps to avoid lawsuits filed by an employee and/or employee family member’s, including staying up to date on all safety measures to avoid COVID-19.





[i] California Worker’s Compensation Act.

[ii] See’s Candies, Inc. v. Superior Court of California For the County of Los Angeles (2nd Appellate District, Dec. 21, 2021) Case No. 312241.

[iii] Id.

[iv] Id. and Berg, Lauren “See’s Candies Can’t Toss Worker’s COVID-19 Safety Suit”, April 13, 2021.

[v] Id.

[vi] Id. citing Snyder v. Michael’s Stores, Inc. (1997) 16 Cal.4th 991, 1000 and King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1051.

[vii] Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1140.

[viii] Snyder v. Michael’s Stores, Inc. (1997) 16 Cal.4th 991, 1000

[ix] Id.

[x] Wentzel, Karen and Hintze, Cristen “Avoiding Endless Liability From ‘Take Home’ COVID Claims.” Law360 (June 15, 2022)

Copyright © 2001–2022 Tyson & Mendes LLP. All Rights Reserved. Website by Big Behavior.