An April 15 WLF Legal Pulse post by Robert Wright, Cases in State and Federal Court Could Create “Take-Home Covid-19” Liability in California, noted a California Court of Appeal decision that held the state’s workers’ compensation law did not bar the spouse of a See’s Candies worker that allegedly contracted COVID-19 at work from suing the company for her contraction of the virus. At the time we published the post, the California Supreme Court had yet to rule on See’s Candies’ petition for review.

On April 14, the state high court declined to review See’s Candies Inc. v. Superior Court. The court’s denial sends the case back down to the trial court, which had previously held that See’s Candies owed a duty not only to its worker, but to its worker’s spouse. An amicus brief filed with the Court of Appeal by a coalition of trade associations highlighted the difficulty courts will have with COVID-19-related derivative-injury claims:

Determining the source of an employee’s COVID-19 infection, and whether the employee was the source of the family member’s infection, are often both unknowable because “the virus can be ‘spread by individuals who are pre-symptomatic or asymptomatic,’ i.e., difficult to identify.” (South Bay United Pentecostal Church v. Newsome (9th Cir. 2021) 985 F.3d 1128, 1132.) The risk of contracting COVID-l9, as another court has observed, is present “nearly anywhere in this country and the world.” (Palmer v., Inc. (E.D.N.Y. 2020) 498 F.Supp.3d. 359).

The California Supreme Court may soon have another opportunity to determine whether “take-home” COVID-19 claims can circumvent the state workers’ compensation system. As our April 15 post explained, the Ninth Circuit debated that very legal question on March 10 in an oral argument on Kuciemba v. Victory Woodworks Inc., No. 21-15963. The trial court held that the workers’ compensation law barred a take-home COVID-19 claim. See’s Candies figured prominently in the oral argument, and one judge raised the possibility of certifying the question to the California justices. Now that the state high court has declined to review See’s Candies, interested businesses should keep a close eye on what the Ninth Circuit will do in Kuciemba.