For additional information on this topic, read the alert below written by Jonathan Turner and Thea Rogers:

As we recently posted, Governor Newsom signed an executive order on May 6 that created a rebuttable presumption, for purposes of receiving workers’ compensation benefits, that employees who test positive for or are diagnosed with COVID-19 contracted the virus while at work.  This presumption is contingent on the existence of certain conditions, specifically: (1) the employee performed work at the employee’s place of employment on or after March 19, 2020; (2) the employee was not working from the employee’s own home or residence; (3) the employee tested positive for or was diagnosed with COVID-19 within 14 days after the employee performed work at the employee’s place of employment; and (4) the COVID-19 diagnosis was done by a physician licensed in California and the diagnosis was confirmed by further testing within 30 days of the date of the diagnosis.

Employers may query whether they should simply accept this presumption if a covered employee is diagnosed with COVID-19, and allow their workers’ compensation insurance to take over and handle any employee claim.  However, if employers refrain from challenging this rebuttable presumption, a host of unforeseen implications could potentially arise. Most significantly, if a covered employee tests positive for COVID-19 and her/his household family member(s) subsequently contract the virus, become ill and, worst case scenario, die, recent case law could potentially support a finding that the infected family member of the employee is also permitted to sue the employer, on a theory of take-home exposure that the employer had a duty of care to prevent.

In an analogous case, the California Supreme Court held that, because “it was foreseeable that people who work with or around asbestos may carry asbestos fibers home with them and expose members of their household,” and because public policy weighed in favor of imposing a duty, the “defendants owed the members of their employees’ households a duty of ordinary care to prevent take-home exposure.”  See Kesner v. Superior Court, 1 Cal. 5th 1132 (2016).  And this line of thinking extends beyond California state lines; less than a year after Kesner was decided, the 11^th Circuit similarly held that an employer owed a duty under Alabama law to prevent exposure to an employee’s wife of take-home asbestos.  See Bobo v. Tennessee Valley Auth., 855 F.3d 1294 (11th Cir. 2017).

            Two things should be noted, however, regarding the foregoing cases: first, liability in these cases was premised on a typical negligence standard—i.e. duty, breach, proximate causation and harm—not on the no fault/strict liability standard of workers’ compensation, and second, neither case was presented with the question of whether the “exclusive remedy” provisions under the state’s workers compensation statute served as a bar to the civil action.

Because of the difference in liability standards, a “no-fault” workers’ compensation award for COVID-19 could not be easily translated into a favorable judgment in a negligence action brought by an employee’s household family member, though employers should still be aware that the possibility of such an award does exist.  In the foregoing cases, a critical point was that the household family members had to establish not just that they sustained injuries independent of those sustained by the employee, but that their injuries were attributed to fault of the employer by reason of the employer’s negligence to all who foreseeably would come into contact with the employee.

The workers compensation exclusive remedy provisions is a matter of significance because the general rule is that those provisions bar a civil action either by the employee or the employee’s family member if the recovery sought is for injuries arising out of or that occurred in the course or scope of the employee’s employment.  See Williams v. Schwartz, 61 Cal.App.3d 628 (1976); Lafiell Manufacturing v. Superior Court, 55 Cal.4^th 275 (2012).  But where family members are concerned, the courts have recognized exceptions to this rule if the alleged injury for which the family member seeks to recover is one that is neither based on or legally dependent upon the injuries suffered by the employee.  See Snyder v. Michael’s Stores, Inc., 16 Cal. 4th 991, 945 P.2d 781 (1997).

Here, a COVID-19 infected family member’s injury likely would come within the Snyder exception to the general rule, because the family member’s infection, even though transmitted by the employee, is an injury that is not dependent on any injury sustained by the employee.  Hence, the employee’s spouse and other family members arguably could sue the employer without being subject to the statutory bar under the workers compensation statute if they could establish that contraction of the infection was caused by the employer’s negligent failure to take appropriate precautions in the workplace to protect its employees, and it was “reasonably foreseeable” that the failure to take such precautions would result in injury to all who seek to recover against the employer.

Employers are thus encouraged to consider challenging the rebuttable presumption, instead of automatically conceding that an employee contracted COVID-19 while at work, before they relinquish any employee claims to their workers’ compensation forum.