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COVID-19Workers' Compenstation

Revisiting the See’s Candies (Ek) decision and employer duty of care

A number of months ago, I completed an assessment of the See’s Candies Inc. v. Superior Court (Ek) decision. For a review, please visit this post for more background.

The See’s decision discussed the long- standing Derivative Injury doctrine, which is a doctrine that states Workers’ Compensation exclusivity applies to all claims that are collateral to or derivative of a compensable injury in the Workers’ Compensation injury.

It was my opinion that the case potentially put a large dent in this exclusive remedy rule, thus opening the potential for sizeable and I would argue, largely unforeseeable liability for employers who already face some heavy burdens in this system of ours.

In April, after reviewing the lower court and appellate decisions, the Supreme Court declined to review this decision without comment after See’s Candies petitioned the December, 2021 decision of the 2 nd District Court of Appeal (see See’s Candies Inc. v. Los Angeles Superior Court et al.). The final decision of this case in essence bars a claim where it is a legal impossibility to state a cause of action without alleging a disabling or lethal injury to an employee. However, it does not bar claims with only a causal link to an industrial injury.

But is this the end? Have we reached the finality of employer liability? No! The issue over duty of care of the employer was not addressed. Which is the second issue a party will need to address to successfully prevail in a tort action. Why was it not addressed? I think it was the decision of the court to not address this issue due to another case making its rounds through the lower courts at the time See’s Candies was headed up to the Supreme Court. Enter Kuciemba v. Victory Woodworks, 2021 U.S. Dist. LEXIS 88997; 2022 U.S. App. LEXIS 10786 9 th Circuit Court of Appeals. Some of the facts of this case ring similar to that of See’s, though there are some distinct differences. In the Kuciemba matter, both the employee and his spouse were hospitalized due to COVID-19 he contracted at work. The spouse sued for damages alleging negligence and public nuisance while her spouse sued for loss of consortium. Initially, the Federal District Court granted the employer’s motion to dismiss under the Exclusive Remedy doctrine, though the Court of Appeals certified specific questions related to COVID to the Supreme Court of California.

The Supreme Court will ultimately address two issues. First, if the Derivative Injury rule bars the claims of the couple. Second, whether the employer owes a duty of ordinary care to members of the household. And thus, the second issue not addressed in See’s appears to be on its way to being answered. Basic Tort law addresses duty of care and negligence all the time but the big unanswered question is how far does that duty extend? While there is a general duty for employers to provide employees with a safe work environment, it is my opinion that opening the door to the household of the employee as wide as both See’s and Kuciemba would potentially allow would be disastrous to employers and employees alike. And with COVID-19 and the resulting changes with remote employment opportunities which I believe has largely been a benefit to employer and employee alike, we would likely see a very rapid return to in-person work only so that the employer can better control the “workplace” and potential liability in general.

The employer duty to the household was addressed in another case that does give us a roadmap of sorts as to the thoughts of the State of California in imposing liability on the employer for incidents that occur in the home. The Colonial Van decision (see Colonial Van & Storage, Inc. v. Superior Court, 76 Cal. App. 5 th 487 (2022), which involved a most unfortunate series of events, discussed a duty of care in the home. In that case, a married couple both worked for the company. The wife was a supervisor and could work from home. She often invited co workers to her home for work-related meetings and other events. One evening, they invited a coworker and business associate (and sadly, an infant also was in the home) to dinner where they discussed both work and non work-related items and tasks. Their son, who suffered from PTSD, suddenly left the dinner table and returned with a firearm and started shooting, killing his stepfather and wounding everyone else. Colonial and the employee were sued for negligence and intentional infliction of emotional distress. On Writ of Petition to the Court of Appeal, the court addressed the issue of whether an employer has a duty to address safety of persons at an off-site work location from third party action. Ultimately, the case was dismissed with the court concluding that an employer does not have a duty to protect work from home employees from third-party criminal conduct.

The court analyzed if the employer had a duty to protect employee’s at home, which is a location they do not own nor possess. They ultimately refused to impose a duty, at least as it pertains to tortious activity of a third party. Next, they considered if the employer was deemed to have exercised control over the employee’s home if it enjoys a commercial benefit from the use of the home. Ultimately, a mere commercial benefit was not sufficient. Next, the court held that an injured coworker could not rely upon an employer-employee relationship to impose a duty on the employer. Next, the Court determined that the harm was not foreseeable and that Colonial had no actual knowledge of risk. Finally, the Court considered public policy against imposing liability. In essence, they claimed that public policy weighed heavily against imposing a duty against the employer, arguing that liability for the employer would create an “unrealistic obligation.”

With this case in mind, a determination of employer liability in the Kuciemba matter would create all kinds of potential changes should work from home continue. This could include modification of homes, introduction of cameras and safety equipment, background checks of family, privacy intrusions, HIPPA considerations, just to name a few. So what should we take away from all of this? First, the third-party liability in Colonial Van is not a direct win for the employer. That decision was based on a limited set of facts. However, it does lay the groundwork for fighting the overall employer liability component. Next, regardless of the outcome, employers must continue to make every effort to have their places of work be as safe as possible. Follow all State and local regulations for all safety precautions depending on industry and general health precautions, such as those involving COVID-19, which impact everyone. Continue to document these efforts and above all, address all potential claims and liability early and often. Getting out ahead of the problem is always the best option.

Check back for updates once we see where Kuciemba winds up!