Will COVID-19 create new workers’ comp exceptions?

We have previously noted the COVID-19 pandemic will create novel legal questions for employers, most of which are yet to be answered. Although workers’ compensation is generally the exclusive remedy for workplace injuries, that system is a creature of public policy and is sometimes modified by public policy. Additionally, unlike many workplaces’ safety risks, this pandemic created health consequences that, by definition, could create injury to others.

Now, the California Supreme Court has been asked to rule on two questions: If an employee contracts COVID-19 at his workplace and brings the virus home to his spouse, does California’s workers’ comp derivative injury doctrine bar the spouse’s claim against the employer? Does an employer owe a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19?

COVID in the workplace

In response to the COVID-19 pandemic, San Francisco issued a shelter-in-place order in March 2020, effectively shuttering many local businesses. The restrictions were relaxed two months later when San Francisco issued a revised order (the “Health Order”) allowing certain essential industries, including the construction industry, to reopen. Although these businesses were permitted to reopen, the Health Order imposed stringent conditions on their operations to limit the spread of COVID-19.