Difference between revisions of "COVID-19 and the Exclusive Remedy Rule"

Latest revision as of 23:46, 19 January 2024

< Previous	Table of Contents	Next >

The purpose of the exclusive remedy rule is to protect the employer from unlimited liability for the industrial injuries of its employees. It protects the employer's side of the compensation bargain.^[1] Under that bargain, the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is given relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.^[2]

The rule is the same when an employee is injured or dies as a result of an illness related to COVID-19. A worker may pursue a workers' compensation claim against an employer, but generally cannot sue the employer in civil court. That means an employee is limited to benefits available in the workers' compensation system: (1) medical care; (2) temporary disability; (3) permanent disability; (4) money for retraining; and (5) death benefits in the event of death.

Even if an employee is covered by a presumption that the illness or death related to COVID-19 arises out of and in the course of the employment, the worker will be entitled only to regular workers' compensation benefits, although any paid sick leave benefits specifically available in response to COVID-19 must be used and exhausted before any temporary disability benefits are due and payable (LC 3212.87(c), LC 3212.88(c)). The employee is not entitled to expenses not normally covered by workers' compensation such as expenses related to a self-quarantine or mandatory quarantine, or expenses for the purchase of personal protective equipment (PPE).

Derivative Injury Rule

The exclusive remedy doctrine bars not only civil claims against an employer by an injured worker –– it extends to claims brought by all others that are collateral to or derivative of the employee's injury. This is known as the derivative injury rule, and it's supported by the Labor Code.

Pursuant to LC 3600(a), compensation under the workers' compensation system is provided "in lieu of any other liability whatsoever to any person." Moreover, LC 3602(a) states, "Where the conditions of compensation set forth in Section 3600 concur, the right to recover compensation is ... the sole and exclusive remedy of the employee or his or her dependents against the employer."

Accordingly, dependents and other people cannot bring civil claims that are derivative of an employee's work-related injuries. For example, family members cannot bring civil claims for intentional infliction of emotional distress, loss of consortium, or wrongful death that are based on the injury or death of an employee. Only workers' compensation benefits are payable to the injured worker; death benefits are payable to the dependents in the event of the worker's death.

This issue has resurfaced in the wake of the COVID-19 pandemic. Although many workers were required to stay home during the pandemic, essential and frontline workers were permitted, if not required, to continue working. The Legislature recognized that the burden of fighting COVID-19 fell disproportionately on the group of people who continued to work during the pandemic, so it enacted presumptions allowing such workers to more quickly prove an illness related to COVID-19, and receive benefits for it.

But the risk of COVID-19 infection increased not only for essential and frontline workers –– it also increased for their family members. Employees who continued to work during the pandemic inevitably increased the risk of exposure of family members when they returned home. Family members are not covered by the Workers' Compensation Act (WCA) because they are not employees. But are they also precluded from bringing civil claims under the derivative injury rule?

Derivative Injury Rule Does Not Apply to Claims by Family Members for Illness Related to COVID-19

On Dec. 21, 2021, in See's Candies, Inc. v. Superior Court of California for the County of Los Angeles, the 2nd District Court of Appeal held that the derivative injury rule does not apply to legally independent claims by family members for illness related to COVID-19. In that case, an employee alleged that she continued working during the pandemic without appropriate and necessary social distancing. She became infected with COVID-19 along with other co-workers.

She was unable to work and stayed home with her husband and daughter, who provided care for her. Within a few days, both the husband and the daughter became sick with COVID-19. After struggling with the illness, the husband died. The worker and her daughter (plaintiffs) brought a civil action against the employer seeking damages for the wrongful death of the husband. The defendant asserted that the plaintiffs' claims were pre-empted by the WCA under the derivative injury rule.

The 2nd District Court of Appeal explained that third-party injuries are not subject to the derivative injury doctrine merely because they are caused by an employee's injury. It stated, "Neither the statutory language nor the case law ... remotely suggests that third parties who, because of a business’s negligence, suffer injuries –– logically and legally independent of any employee’s injuries –– have conceded their common law rights of action as part of the societal ‘compensation bargain.’” It found that the plaintiffs were not seeking damages arising from a disabling or lethal injury to an employee, but were suing for damages arising from the husband's death, which allegedly was related causally to the employee's alleged infection in the workplace.

The court was clear, however, that it did not address whether defendants owed a duty of care to nonemployees infected with COVID-19 as a result of an employee contracting the disease. It added that its analysis of issues of causation and derivative injuries was limited to interpretation of the WCA and was not intended to apply more generally to principles of civil litigation.

The Court of Appeal's holding in See's Candies is limited. It holds only that the plaintiffs' claims in that case were not barred by the WCA under the derivative injury rule. The plaintiffs still must establish employer liability under tort law in order to recover. So, although there's no question that See's Candies opens the door for more lawsuits against employers for illnesses or deaths related to COVID-19 contracted by family members of employees, whether employers will be liable no doubt will depend on the facts of each case.

References

↑ Shoemaker v. Myers (1990) 55 CCC 494, 502; Schlick v. Comco Management, Inc. (1987) 53 CCC 33.
↑ Shoemaker v. Myers (1990) 55 CCC 494, 502.

< COVID-19 Presumptions — FAQs	Table of Contents	The Basic Rule — Increased Risk and the General Public >

[1] Shoemaker v. Myers (1990) 55 CCC 494, 502; Schlick v. Comco Management, Inc. (1987) 53 CCC 33.

[2] Shoemaker v. Myers (1990) 55 CCC 494, 502.

[1]

[2]

@@ Line 7: / Line 7: @@
 ----
 __TOC__
-An employee who is not covered by a presumption may claim successfully that his or her COVID-19 illness was work related by proving that his or her risk of contracting the virus was materially greater than that of the general public, or more common at the workplace than among the public.<ref>''South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark)'' (2015) 61 Cal. 4th 291, 301.</ref> The most relevant cases to the coronavirus outbreak would be two California Supreme Court cases from 1920 related to what's commonly called the Spanish flu  ––  ''City and County of San Francisco v. IAC (Slattery)''<ref>(1920) 183 Cal. 273.</ref> and ''Engels Copper Mining Co. v. IAC (Rebstock)''.<ref> (1920) 183 Cal. 714.</ref> (Note that the California workers' compensation system was only 2 years old at the time!)
-In ''Slattery,'' the Supreme Court awarded death benefits to the widow of a hospital steward who died in 1918 of the Spanish flu. The employer argued that the employee did not contract the influenza from his employment because an epidemic of the disease was raging in the city at the time, the disease was highly infectious, it was so general that 1 in 10 city residents contracted it and virtually every member of the community was exposed to it.<ref>''City and County of San Francisco v. IAC (Slattery)'' (1920) 183 Cal. 273, 282.</ref>
-The Supreme Court found that the employee was exposed directly to a considerable number of influenza patients and came down with the disease within the period of incubation after his exposure. It explained that if the epidemic were so severe that if the proportion of the afflicted general public was anything like the number of afflicted in the employee’s class, it might be too speculative to award benefits. But the evidence established that 50%-85% of nurses contracted the disease, compared with 10% for the community in general. It found that this percentage was so great that it was reasonable to conclude that the employee's illness was due to the peculiar exposure of his employment.<ref>''City and County of San Francisco v. IAC (Slattery)'' (1920) 183 Cal. 273, 283.</ref>
-Similarly, in ''Rebstock,'' the Supreme Court held that a safety engineer who contracted the Spanish flu that caused a heart condition was entitled to an award of benefits. The employee gave up his regular duties at the employer's request for five or six days to care for co-workers suffering from the disease. The employee contracted the disease himself. The employer argued that he acquired it due to the general exposure to which every member of the community was subjected at the time. Again, the Supreme Court found that the employee's chance of contracting the virus was 5 to 8 times as great as the community at large –– he was "exceptionally exposed" and contracted the disease in the course of employment. <ref>''Engels Copper Mining Co. v. IAC (Rebstock)'' (1920) 183 Cal. 714.</ref>
-This exception has been applied in other cases. In ''Bethlehem Steel Co. v. Industrial Acci. Com.,''<ref>(1943) 21 Cal.2d 742.</ref> the Supreme Court held that 10 shipyard workers who contracted keratoconjunctivitis, a contagious eye disease, were entitled to benefits even though there was a similar epidemic in the city. It found that “The evidence is quite convincing that the disease in the community outside of the shipyards was of much less proportion compared to the population.”<ref>''Bethlehem Steel Co. v. Industrial Acci. Com.'' (1943) 21 Cal. 2d 742, 750.</ref> It concluded that the employees met their burden, proving that the risk of contracting the disease by virtue of the employment was materially greater than that of the general public.
-In addition, in ''Pacific Employers Ins. Co. v. Industrial Acci. Com. (Ehrhardt),''<ref>(1942) 19 Cal. 2d 622.</ref> the Supreme Court awarded compensation benefits to a traveling salesman who contracted a respiratory illness caused by a fungus that thrives in California's San Joaquin Valley and in Arizona, commonly known as Valley fever. Before his employment, the salesman had never been to either region. The court stated: "It was by reason of and incident to his employment that he came in contact with the infection. The risk to which he was subjected by his employment was not the same as that of the public in the endemic area inasmuch as the great majority of the inhabitants there possessed an immunity to the disease which [the employee], living outside the area, lacked."<ref>''Pacific Employers Ins. Co. v. Industrial Acci. Com. (Ehrhardt)'' (1942) 19 Cal. 2d 622, 630.</ref> For discussion of other cases, see "Sullivan on Comp" [https://app.sullivanoncomp.com/soc/index/title/5.9 Section 5.9 Occupational Disease].
-==Application of Increased Risk Exception to COVID-19==
+An injured employee usually cannot sue the employer in civil court. Generally, when the conditions of compensation defined in Labor Code § 3600 concur, the sole and exclusive remedy of the employee and his or her dependents against the employer is the workers' compensation system (LC 3602(a)).
-Given the cases outlined above, many workers who contract the coronavirus will be able bring workers' compensation claims. This is especially true for those employees who contracted the disease during the lockdown.
+The purpose of the exclusive remedy rule is to protect the employer from unlimited liability for the industrial injuries of its employees. It protects the employer's side of the compensation bargain.<ref>''Shoemaker v. Myers'' (1990) 55 CCC 494, 502; ''Schlick v. Comco Management, Inc.'' (1987) 53 CCC 33.</ref> Under that bargain, the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is given relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.<ref>''Shoemaker v. Myers'' (1990) 55 CCC 494, 502.</ref>
-Gov. Gavin Newsom's executive order of March 19, 2020 had required all California residents to stay home, except for workers deemed to be essential.<ref>See https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf.</ref> By specifying that certain workers should continue working, while requiring all others to stay at home, the executive order potentially identifies workers with increased exposure to the coronavirus. That is, if the general public stays home, only certain workers in the field, arguably, are at greater risk than the public. The argument might weaken, however, when people start going back to the workplace.
+The rule is the same when an employee is injured or dies as a result of an illness related to COVID-19. A worker may pursue a workers' compensation claim against an employer, but generally cannot sue the employer in civil court. That means an employee is limited to benefits available in the workers' compensation system: (1) medical care; (2) temporary disability; (3) permanent disability; (4) money for retraining; and (5) death benefits in the event of death.
-The list of essential workers includes:
+Even if an employee is covered by a presumption that the illness or death related to COVID-19 arises out of and in the course of the employment, the worker will be entitled only  to regular workers' compensation benefits, although any paid sick leave benefits specifically available in response to COVID-19 must be used and exhausted before any temporary disability benefits are due and payable (LC 3212.87(c), LC 3212.88(c)). The employee is not entitled to expenses not normally covered by workers' compensation such as expenses related to a self-quarantine or mandatory quarantine, or expenses for the purchase of personal protective equipment (PPE).
-<ol>
+==Derivative Injury Rule==
-<li>health-care providers, hospital personnel and workers in medical facilities;</li>
+The exclusive remedy doctrine bars not only civil claims against an employer by an injured worker  –– it extends to claims brought by all others that are collateral to or derivative of the employee's injury. This is known as the derivative injury rule, and it's supported by the Labor Code.
-<li>law enforcement officers;</li>
+Pursuant to LC 3600(a), compensation under the workers' compensation system is provided "in lieu of any other liability whatsoever to any person." Moreover, LC 3602(a) states, "Where the conditions of compensation set forth in Section 3600 concur, the right to recover compensation is ... the sole and exclusive remedy of the employee or his or her dependents against the employer."
-<li>grocery and pharmacy workers;</li>
+Accordingly, dependents and other people cannot bring civil claims that are derivative of an employee's work-related injuries. For example, family members cannot bring civil claims for intentional infliction of emotional distress, loss of consortium, or wrongful death that are based on the injury or death of an employee. Only workers' compensation benefits are payable to the injured worker; death benefits are payable to the dependents in the event of the worker's death.
-<li>food manufacturing employees;</li>
+This issue has resurfaced in the wake of the COVID-19 pandemic. Although many workers were required to stay home during the pandemic, essential and frontline workers were permitted, if not required, to continue working. The Legislature recognized that the burden of fighting COVID-19 fell disproportionately on the group of people who continued to work during the pandemic, so it enacted presumptions allowing such workers to more quickly prove an illness related to COVID-19, and receive benefits for it.
-<li>farm workers;</li>
+But the risk of COVID-19 infection increased not only for essential and frontline workers –– it also increased for their family members. Employees who continued to work during the pandemic inevitably increased the risk of exposure of family members when they returned home. Family members are not covered by the Workers' Compensation Act (WCA) because they are not employees. But are they also precluded from bringing civil claims under the derivative injury rule?
-<li>mass transit workers, taxi and truck drivers;</li>
+==Derivative Injury Rule Does Not Apply to Claims by Family Members for Illness Related to COVID-19==
-<li>postal and shipping workers;</li>
+On Dec. 21, 2021, in [https://www.courts.ca.gov/opinions/documents/B312241.PDF ''See's Candies, Inc. v. Superior Court of California for the County of Los Angeles''], the 2nd District Court of Appeal held that the derivative injury rule does not apply to legally independent claims by family members for illness related to COVID-19. In that case, an employee alleged that she continued working during the pandemic without appropriate and necessary social distancing. She became infected with COVID-19 along with other co-workers.
-<li>workers providing access to banking and lending services; and</li>
+She was unable to work and stayed home with her husband and daughter, who provided care for her. Within a few days, both the husband and the daughter became sick with COVID-19. After struggling with the illness, the husband died. The worker and her daughter (plaintiffs) brought a civil action against the employer seeking damages for the wrongful death of the husband. The defendant asserted that the plaintiffs' claims were pre-empted by the WCA under the derivative injury rule.
-<li>gas station workers.</li></ol>
+The 2nd District Court of Appeal explained that third-party injuries are not subject to the derivative injury doctrine merely because they are caused by an employee's injury. It stated, "Neither the statutory language nor the case law ... remotely suggests that third parties who, because of a business’s negligence, suffer injuries –– logically and legally independent of any employee’s injuries –– have conceded their common law rights of action as part of the societal ‘compensation bargain.’” It found that the plaintiffs were not seeking damages arising from a disabling or lethal injury to an employee, but were suing for damages arising from the husband's death, which allegedly was related causally to the employee's alleged infection in the workplace.
-Only health-care workers and law enforcement officers have been given a COVID-19 presumption. Other workers either must establish that there was a COVID-19 outbreak at their workplace or that they had an increased risk of exposure.
+The court was clear, however, that it did not address whether defendants owed a duty of care to nonemployees infected with COVID-19 as a result of an employee contracting the disease. It added that its analysis of issues of causation and derivative injuries was limited to interpretation of the WCA and was not intended to apply more generally to principles of civil litigation.
-Pursuant to ''Bethlehem Steel,'' nonessential workers also might be eligible for workers' compensation benefits if they can prove that they're at increased risk. Nothing about ''Bethlehem's'' shipyard workers necessarily made them more susceptible to keratoconjunctivitis than other employees. But the Supreme Court still upheld a determination that their exposure was greater than that of the general population based on the evidence at trial. Likewise, if a large percentage of office employees or factory workers for the same employer contract the coronavirus, the courts might find sufficient evidence of an increased risk compared with the general public.
-Furthermore, even if they're not essential workers or they can't prove that a material percentage of co-workers contracted the coronavirus, employees, pursuant to ''Ehrhardt,'' could assert an increased risk if they were required to travel to where there was an increased risk of exposure. For example, a salesperson could meet with officials at a hospital where COVID-19 patients were treated, or in an office building where it was discovered later that a significant percentage of employees contracted the coronavirus.
-Accordingly, although employees have the burden of proving that their increased risk was materially greater than that of the general public, they have multiple ways of meeting the burden. The outcome will depend largely on the evidence of exposure presented at trial.
+The Court of Appeal's holding in ''See's Candies'' is limited. It holds only that the plaintiffs' claims in that case were not barred by the WCA under the derivative injury rule. The plaintiffs still must establish employer liability under tort law in order to recover. So, although there's no question that ''See's Candies'' opens the door for more lawsuits against employers for illnesses or deaths related to COVID-19 contracted by family members of employees, whether employers will be liable no doubt will depend on the facts of each case.
 ==See Also==
@@ Line 68: / Line 52: @@
 <references/>
+----
-----
 <center>

INTRODUCTION

EMPLOYMENT AND LABOR LAW

WORKERS' COMPENSATION LAW

Difference between revisions of "COVID-19 and the Exclusive Remedy Rule"

From Navigating COVID-19

Latest revision as of 23:46, 19 January 2024

Contents

Derivative Injury Rule

Derivative Injury Rule Does Not Apply to Claims by Family Members for Illness Related to COVID-19

See Also

References

GET IMPORTANT UPDATES

Michael Sullivan & Associates