A Preliminary Assessment of Potential California Workers’ Compensation Liability Related to the Coronavirus

The Hon. Raymond F. Correio (Ret.) Encino, California

Introduction

There is reason to believe that the holdings and related legal principles derived from the key cases discussed in this article will govern and control determinations of whether an alleged work-related exposure to the coronavirus is compensable as an injury arising out of and in the course of employment (AOE/COE).

However, it should be stressed that the coronavirus and the disease it causes, COVID-19, are different in many ways from other viruses and infectious diseases in terms of potential workers’ compensation liability issues. The World Health Organization has officially declared the coronavirus a worldwide pandemic, while currently, the seasonal flu is not. In addition, the coronavirus is highly virulent and contagious and, unlike the flu, asymptomatic infected individuals may, for an as yet unspecified period of time, unknowingly transmit it to uninfected individuals both outside and in the workplace. As the cases discussed in this article indicate, even if an employer implements stringent precautionary measures to protect its employees from exposure to the coronavirus, the employer may not be completely insulated from potential workers’ compensation liability. This may be the case if an employee can establish they contracted the virus related to an exposure particular to the work and that created a special or increased risk—materially greater than the exposure common to the general public—of contracting the virus.