Worker’s Compensation is not enough to protect employers from liability when it comes to COVID-19 exposure, according to a state appellate court ruling.
The Second Appellate District of California’s Court of Appeal ruled in favor of the wife and daughters of Arturo Ek who died of the coronavirus after being infected by his wife, Matilde Ek, who worked at See’s Candies in Los Angeles.
“Because the parties have framed this writ exclusively to address the applicability of the Workman’s Compensation Act (WCA), we have no occasion to decide whether defendants owed Mr. Ek a duty of care or whether plaintiffs can demonstrate that Mr. or Mrs. Ek contracted COVID-19 because of any negligence in defendants’ workplace, as opposed to another source during the COVID-19 pandemic,” the Dec. 21 ruling states. “The parties have not raised these issues, and we decline to address them sua sponte. Accordingly, we deny the petition.”
Plaintiffs, Ek and her daughters, allege that she contracted the virus because the defendant, See’s Candies, failed to implement adequate safety measures.
But, the panel of three judges did not support unlimited liability.
“The unique factual and legal issues presented by the ongoing pandemic will not inexorably lead to unlimited liability,” the ruling says. “Unaddressed in this writ proceeding is whether defendants owe a duty of care to nonemployees infected with COVID-19 as a result of an employee contracting the disease at work.”
Appellate judges who unanimously decided the case include Helen Bendix, Victoria Chaney and Charles S. Crandall.
“We anticipate this will be a growing problem,” said John Kabateck, California state director with the NFIB. “Our policy makers can't ignore the fact that scheming trial lawyers are going to be using the past two years of COVID and the myriad rules to shake down fragile, uncertain, unknowing, small business owners.”
Assembly Bill 247, which is currently pending before the Assembly, would give small-business owners some liability immunity against unfair COVID-19 lawsuits.
“If it were approved, AB 247 would help mitigate legal problems and legal challenges and it would send a clarion call to attorneys attempting to pursue cases like See’s that they are on watch and that small businesses have a safe harbor with sensible protections,” Kabateck told the Southern California Record.
However, Kabateck isn’t confident AB 247 will be approved this legislative session unless it passes out of its house of origin by the looming Jan. 31 deadline.
“It needs to move out of the Assembly Judiciary Committee and it hasn’t made it out of there,” he said. “It wasn't even placed on the calendar.”