Partner, Fisher Phillips
Can a spouse or family member of an employee sue you if the worker brings COVID-19 into the home?
California employers will find out when the California Supreme Court decides on a case in the coming months. The question being decided is whether a family member can sue the employer in a civil case or whether the issue is one covered by worker’s compensation.
Benjamin Ebbink, a partner in the Sacramento office of Fisher Phillips, told the McKnight’s Business Daily that he thinks employers should be watching to see how this plays out in the state’s High Court.
“If you are in certain industries like healthcare-related or long-term care, where you do potentially have a higher risk, maybe there is more of a concern than other jobs. …Certainly when you are talking about healthcare-related issues, I think there’s a concern that employees are going to come into COVID more frequently,” Ebbink said.
“The allegation is that they came into contact with it [COVID] at work and then took it home to a family member or a spouse who contracted it,” he said.
The “derivative theory doctrine,” Ebbink said, holds that “somebody else’s claim arose out of an employee’s work-related injury or illness that also falls under worker’s compensation,” but the employer in the case, See’s Candy, disagreed that the doctrine applied.
In the second case, however, the employee’s family member did not die from the coronavirus. In that case, the federal trial court sided with the employer and said that the situation was tied to a worker’s compensation injury or illness, and that there was no negligence claim, Ebbink said.
“Business groups have said allowing employers to be held liable for so-called ‘take-home’ COVID infections will prompt lawsuits not only by workers’ family and friends but by anyone infected by that circle of people,” Reuters reported.
