I theorized that industrial COVID deaths resulting in transmission to and death of the employee’s family members could possibly follow the path of asbestos and pursue remedies against the employer in civil court rather than through the workers’ compensation system. Well, the Kuciemba case seemed to shut that theory down, granting the defendant’s petition for dismissal.

Gregory Grinberg

Now a different case is working its way through the court system: Matilde Ek v. See’s Candies Inc. Plaintiff Ms. Ek was an employee of See’s Candies Inc., where she allegedly contracted COVID-19. She brought COVID home to her family, and her husband, sadly, died as a result of the infection.

See’s Candies sought a demurrer, arguing that any of Ms. Ek’s claims are derivative of her workers’ compensation claims and must be confined to the realm of workers’ compensation. Ms. Ek’s attorneys argued, however, that despite her being a vector for the disease, she was claiming damages distinct from her own COVID suffering, based on the death of her husband. 

The case is now up on appeal as to whether a demurrer is appropriate, as the trial level court denied the defendant’s demurrer. 

In other words, if you’ve been thinking to yourself that you really wish there were 2 a.m. TV commercials looking for clients who may have gotten COVID from a family member who got it from work, you are in luck.

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.