Questions Facing Business Owners When Resuming Operations During a Pandemic

EMPLOYEES: Should businesses require their employees to sign a waiver prior to returning to the workplace?

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 actions 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 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. 

MEMBERS & CUSTOMERS: Should businesses ask members or customers to sign a waiver?

Some businesses that are open to the public are considering whether to have customers or members potentially sign a liability waiver. Typically a liability waiver is a document that states the signing party is aware that an activity is dangerous and may result in personal injury or death and the signing party assumes the risk of engaging in the activity. The waiver often goes on to say that the signing party releases the business from any claims for injuries, even if caused by negligence. Historically liability waivers have been signed by participants in inherently dangerous activities such as skiing, snowboarding, boating, skydiving, etc. Due to the highly contagious nature of COVID-19, some businesses that engage in person-to-person contact are turning to waivers to limit liability in the event of exposure claims.

Is a Liability Waiver Enforceable?

Generally, for a liability waiver to be enforceable, it should contain an exculpatory clause, an indemnity clause, and an assumption of the risk. An exculpatory clause is a contract provision that relieves a party of blame or liability for any wrongdoing.  An indemnity clause is a contract provision that states one party (or both parties) commit to compensate the other (or each other) for any harm, liability, or loss arising out of the contract. Assumption of the risk is the doctrine that says a person may in advance relieve another person or entity of the obligation to act towards him or her with due care and may accept the chance of being injured.

It should be noted that a liability waiver typically cannot release a person or entity from liability for injuries caused by intentional misconduct or for gross negligence. Gross negligence is the wanton disregard for the safety of others. Waivers have also been found unenforceable when they are deemed to be the result of unequal bargaining power and/or where such an agreement would not be permitted as a matter of public policy in transactions affecting the public interest. Business owners should keep in mind that the current health crisis is constantly evolving and it can be hard to predict exactly how such claims will develop and how courts will respond to such claims.

What Precautionary Measures should business owners take?

Business owners should also consider the protocols and practices that they have implemented to comply with federal, state and local health and safety guidelines regarding COVID-19. The CDC recommendations for resuming normal or phased business operations include, but are not limited to, conduct daily health checks, conduct a hazard assessment of the premises, encourage wearing cloth face coverings, implement policies and practices for social distancing and improve building ventilation systems. If a business is not complying with recommended requirements, there is an increased likelihood that a waiver will not be enforceable.

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 or Liability Waiver, please contact us.