On October 12, 2022, the NAM joined other business groups to file an amicus brief urging the Supreme Court of California to reject claims by non-employees seeking to impose liability on employers for COVID-19 infections they contract from an employee outside the employers’ place of business. In this case, the district court concluded that the derivative liability rule—which establishes workers’ compensation as the exclusive remedy for all claims that are derivative of an employee’s covered workplace injury—barred claims asserted by an employee’s wife based on her allegations that she contracted COVID-19 through direct contact with her husband outside of his workplace. The district court also found that the plaintiff failed to state a claim because an employer’s duty to provide a safe workplace to its employees does not extend to non-employees who contracted COVID-19 away from the workplace. On appeal, the 9th Circuit certified two issues to the Supreme Court of California: (1) does the derivative injury liability doctrine bar a spouse’s claim in this context; and (2) does an employer owe a duty to the households of its employees to exercise reasonable care to prevent the spread of COVID-19?
Our brief argues that recognizing an exemption to the derivative liability injury rule would impermissibly deprive employers of the California Legislature’s careful balance of employer and employee rights and competing interests by subjecting employers to an assortment of claims based solely on a non-employee’s purported contact with an infected employee. Even assuming the derivative liability injury rule was inapplicable, the California Supreme Court should conclude that employers have no duty to protect non-employees from contracting infectious diseases from employees infected in the workplace. The NAM argues that the Court should do so because (1) too many intervening factors render it impossible to foresee whether an employer’s negligence will result in a non-employee contracting COVID-19, a community-transmitted disease, from an employee; (2) employers are unable to control whether COVID-19 is present in the workplace and the costs of imposing a duty on employers is high; and (3) the judicial system would be heavily burdened by trying to address whether an employer’s negligence caused a non-employee harm.
Happily, on July 6, 2023, although the Court concluded that the derivative injury liability doctrine does not bar a spouse’s claim, it refused to recognize that employers owe a duty of care to the households of its employees to prevent the spread of COVID-19.