Weighing in on COVID-19 Liability Waivers

Many employers are unclear on the potential COVID-19-related litigation that could arise when calling employees back to the workplace. Some are asking their staff to acknowledge the risks of returning to the office by having them sign waivers that are intended to release the employer from liability. However, COVID-19 liability waivers have many drawbacks, and I implore you to comprehend their somewhat limited scope before making any hasty decisions. Additionally, it is critical that business owners seek legal counsel to ensure the waiver they develop or implement meets their needs, as well as their employees’ needs.

In this article, I will share best practices to help decision-makers evaluate and implement COVID-19 waivers. 

CONSIDER THE PROS AND CONS OF WORKPLACE LIABILITY WAIVERS

The first step a business should take when looking to open its doors is to consult an attorney. Across our country, there are varying guidelines and regulations that must be enforced and adhered to. Although the rules fluctuate depending on your location, what all legal experts can agree on is that, if you’re considering liability waivers, the benefits and drawbacks must be evaluated before they’re distributed. Further, some recommend alternative options that offer some assurances without the obstacles linked to waivers.

Some of the negatives to consider before enacting waivers are as follows:

• It’s critical for all businesses to remember that COVID-19 affects all of humanity, and that suffering occurs for both employees and employers. Instead of doing good, waivers could be harmful to the goal of reopening and deter a workforce willingly returning to work. As a result, negative press could become prevalent, sharing misinformation about the priorities of the company in proportion to the well-being of its employees. Any way you spin this, it doesn’t send a welcoming signal to employees already nervous about the path back to work.

• Traditionally, waiver agreements in the workforce were created to discourage employer superiority. Today, mandatory waivers all too often favor the employer, prompting unequal bargaining power that risks ruining work relationships. I urge businesses to check with their state and county, as waivers do not apply to willful, intentional and negligent behavior. With or without waivers, employers cannot waive this generally labeled liability.

• Employers’ compensation statutes can restrict the capacity of employee waivers. If a work-related injury occurs during a worker’s employment at a business, most states usually hold that the business reimburse or cover medical expenses, lost compensation and recovery costs. But with COVID-19 in the picture, it becomes hazy as to whether employees reserve the same rights as they do in typical injury cases. For example, California has proactively asserted that employees who have contracted COVID-19 at work have a workplace injury and are therefore protected in the workers’ compensation system.

• Occupational Safety and Health Administration (OSHA) compliance continues to be in effect, with or without waivers. If a business is believed to be hazardous, OSHA complaints or measures of enforcement take precedence. (Note: OSHA has been ordered by federal agencies to make exemptions for employers who, with honest intention, make efforts to follow OSHA regulations during the COVID-19 pandemic, which may lessen concerns from businesses about potential litigation.)

RECOGNIZE THE RISE IN CORONAVIRUS LITIGATION

According to Politico in July, “Of the 3,727 coronavirus-related cases that have been filed since the onset of the pandemic in March, just 185, or less than 5%, fall into the personal injury category that [Senate Majority Leader Mitch] McConnell describes — plaintiffs claiming fear of exposure, potential exposure or exposure to COVID-19.”

To play devil’s advocate, there is a waiting period to consider these specific types of liability claims. For example, The Wall Street Journal also reported in July that the first wave of employee exposure-related lawsuits were being filed. Big brand-name companies such as Walmart Inc., Safeway Inc., and Tyson Foods Inc. were all named as having unresolved lawsuits from coronavirus victims and their families, who were alleging those businesses failed to protect the safety and well-being of their employees.

So, while some argue the legal risk to reopening businesses is overstated, others say the opposite — and, importantly, waivers may not be sufficient protection against claims.

The way things used to be is a far-off memory that may stay there indefinitely. Our nation, its businesses and their employees are struggling to maintain some sense of normalcy and reclaim comfort. In the midst of all this rapid adaptation, there is a persevering fear of lawsuits for employers, fear of contracting the deadly virus by employees, and a collective fear by consumers that businesses will be unable to regain their footing if operations aren’t safe.

If your business is looking to implement workplace waivers for your employees, it’s best to take all safety measures seriously and seek advice from legal counsel regarding what COVID-19 regulations must be followed in your local area.