As businesses are reopening and returning employees to the workplace, employers are searching for ways to limit liability relating to potential COVID-19 infections in the workplace. One such consideration is whether to require COVID-19 liability waivers for their employees.
Employers may look to a waiver and release of liability agreement to mitigate certain risks of liability. Such an agreement not only includes a waiver clause, but may also include additional protective provisions like clauses for assumption of risks or covenants not to sue. If enforceable, the waiver could eliminate liability for the risks discussed within.
It is important to note that no waiver or other attempt at limiting liability can replace the need for an employer to maintain a safe workplace. All businesses should begin by ensuring compliance with local health orders, state regulations, and guidance from the Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), and the Equal Employment Opportunity Commission (EEOC).
Employee Waivers Are Problematic for Several Reasons
It remains unclear whether courts and states will allow employers to enforce waiver agreements in this unprecedented time.
First, state workers’ compensation statutes are normally an employee’s exclusive remedy against an employer for injuries and occupational diseases arising in the course and scope of employment. Employees are not permitted to prospectively waive their rights under state workers’ compensation laws. Consequently, a return-to-work waiver seeking to limit liability related to an employee contracting COVID-19 in the workplace may not be enforceable under workers’ compensation laws.
Second, a return-to-work COVID-19 waiver would not be effective against intentional tort claims because such waivers do not apply to willful or intentional conduct.
Third, it is also unlikely that a COVID-19 waiver would protect against claims by employees’ family members who claim to have contracted the virus as a result of the employee’s exposure at work. The employee cannot waive liability on behalf of his or her spouse or adult children.
Fourth, COVID-19 waiver agreements with employees do not protect employers from OSHA complaints or enforcement action when a workplace is dangerous except where employers attempt in good-faith to follow agency regulations during the COVID-19 pandemic. Required waivers could be regarded as an attempt by the employer to avoid its statutory obligation to provide a safe workplace under the Occupational Safety and Health Act (OSHA).
Finally, requiring employees to sign COVID-19 waivers may result in negative reactions from employees. Employees who are already concerned or reluctant to return to work due to COVID-19 may become even more concerned or reluctant, believing the waiver request means the employer views the work conditions as risky or unsafe.
If not a waiver, then what?
Instead of requiring employees to sign a waiver prior to returning to work, employers should ensure that they have policies and procedures in place that comply with the most recent COVID-19 recommendations and/or orders from the CDC, OSHA, EEOC, state and local health authorities. The policies should include a procedure for reporting non-compliance and a provision forbidding retaliation for making such reports. Employers should clearly communicate these policies to employees and require employees to sign an acknowledgment indicating that they have received a copy of the policies and certifying that they will comply with the provisions of those policies.
Please review our Return to the Workplace Guidance for additional considerations when implementing your COVID-19 policies. If you have any questions or would like assistance in drafting a Return to the Workplace policy, please contact us.