The NAM filed an amicus letter brief asking the Court of Appeal for California’s Second Appellate District to review a trial court order that improperly creates a Covid-19 exception to the longstanding “derivative injury rule.” That rule establishes workers’ compensation as the exclusive remedy for all claims that are derivative of an employee’s covered workplace injury—including claims for injuries sustained by members of the employee’s household. In this case, the court created a new exception to that bright-line rule for injuries from Covid-19 that allegedly derive from employees who contract the virus in the employer’s workplace and then infect their family members.
The NAM’s brief argues that if the trial court’s rule is allowed to stand, it could subject employers to potentially unlimited tort liability for alleged injuries that the Legislature intended to be addressed in the workers’ compensation system. Not only does the decision have the potential to devastate businesses already struggling to recover from the COVID-19 pandemic, it creates a clear conflict with a recent decision by a California federal court holding that such claims are barred by the exclusive remedy provisions of California’s workers’ compensation system. Unfortunately, on December 21, 2021, the court affirmed the trial court order.