Reason for employers to adopt strong COVID-19 safety rules: potential liability for non-employee infections


An employee injured at work generally is limited to workers’ compensation benefits, which the worker is entitled to receive whether the employer was negligent or not. If an employee can prove he or she contracted COVID-19 at work — which California law makes easier if there is an outbreak in the workplace — the employee is eligible for (and limited to) workers’ compensation benefits.

But what if the employee contracted COVID-19 at work due to the employer’s inadequate safety measures, then transmitted the disease to a spouse at home and the spouse soon died from COVID-19?

Late last month, the California Court of Appeal ruled that an employee and her daughters were not limited to workers’ compensation benefits if they could prove those facts, even though their loss would not have occurred without the employee’s work-related COVID-19 infection.


Matilde Ek allegedly contracted COVID-19 in March 2020 while working on the packing line of See’s Candies. She recovered at home, where she lived with her family. Her husband allegedly contracted COVID-19 from Ek and died from the disease the following month.

Ek and her daughters sued See’s Candies, alleging that See’s Candies failed to protect Ek and her co-workers from the known risks of the coronavirus that causes COVID-19 by failing to implement reasonable safety measures, including social distancing in the packing lines, restrooms and break rooms. The Eks sought damages for Mr. Ek’s death, including their loss of his love and care.

See’s Candies moved to have the complaint dismissed, arguing that the Eks were limited to workers’ compensation benefits from Mr. Ek’s death. Under Labor Code Section 3600, the employer’s workers’ compensation obligation is a substitute for the employer’s civil liability “to any person” for damages derived from a work-related injury. That limitation extends beyond the injured employee to the employee’s dependents and anyone else.

Under the “derivative injury doctrine,” See’s Candies said, the “plaintiffs could not state a claim against [See’s Candies] for Mr. Ek’s death without alleging an injury to an employee, namely Mrs. Ek’s workplace infection with COVID-19.”

The trial court declined to dismiss the complaint. The court of appeal agreed to review the order issued early in the litigation because “employer liability for COVID-19 exposure is a significant issue of law that is also of public interest.”


The court of appeal ruled that Mrs. Ek and her daughters were not limited by the derivative injury doctrine to recovering workers’ compensation benefits from See’s Candies for their loss if they can prove that Mrs. Ek contracted COVID-19 at work due to See’s Candies’ negligence and that her husband contracted the disease from her.

In 1997, the California Supreme Court ruled that the derivative injury doctrine did not bar a civil claim against an employer for injuries to a child who was exposed to high levels of carbon monoxide in utero when his then-pregnant mother was at work. The family claimed negligent toxic exposure resulted in the baby being born severely disabled.

Relying on that holding, the court of appeal concluded that “there is little difference conceptually between a mother breathing in a poisonous gas and conveying it to her unborn child and a wife breathing in viral particles that she then conveys to family members.”

“Plaintiffs do not seek damages for losses arising from a disabling or lethal injury to Mrs. Ek, such as loss of her support or companionship,” the court continued. “Instead, they sue for damages arising from Mr. Ek’s death, an event allegedly causally related to Mrs. Ek’s alleged infection by the virus in the workplace,” but distinct from it.

The court of appeal said its ruling would not inevitably lead to a flood of cases against employers by non-employees, even by family and friends of those infected. In this case, the court concluded it was too much to bar civil claims by any person injured due to an employee’s work-related injury, family member or not, as See’s Candies argued.


Even an employer that enforces every mandatory and recommended precaution against COVID-19 in its workplace may not prevent employee infections entirely. The lesson from this case, however, is that failure to take such precautions not only heightens employee exposure to COVID-19, it also heightens employer exposure to liability arising from injury to those their employees may infect.

Dan Eaton is a partner with the San Diego law firm Seltzer Caplan McMahon Vitek, where his practice focuses on defending and advising employers. He also is an instructor at San Diego State University’s Fowler College of Business, where he teaches classes in business ethics and employment law. He can be reached at His Twitter handle is @DanEatonlaw.