What Employers Need to Know About Coronavirus Liability Waivers

As businesses continue to navigate the path to reopening, many are considering whether or not they should require employees to sign a waiver of liability as a condition of returning to work. A coronavirus liability waiver, which holds the employer harmless in the event a worker contracts the virus in the normal course of their duties, is becoming a hot topic for business, schools, and even politicians. The waivers were brought to the forefront at a recent presidential rally, which required audience participants to sign the waiver in exchange for tickets to the event.

Qualified immunity for business, a topic brought up during “reopening” discussions, appears to have stalled legislatively on the national level. Now, business owners are turning to their own legal counsel for advice.

Are coronavirus liability waivers necessary?

Liability waivers intend to protect businesses in states that don’t currently have liability limit regulations or immunity from coronavirus-related lawsuits.

Liability waivers intend to protect businesses in states that don’t currently have liability limit regulations or immunity from coronavirus-related lawsuits. In most states, business owners have no legal protection from lawsuits if employees are infected with the virus on the job. They argue that, provided they adhere to all the guidelines required by the CDC or their local legislative body, their company should be protected from legal action. Absent any negligence on the employer’s part, they may be right to be concerned that workers may sue them if they become infected.

To date, these states have enacted limitations on the ability to sue through either an executive order or legislation:

• Alabama
• Arkansas
• Louisiana
• North Carolina
• Oklahoma
• Utah

Other states are considering these liability limits, while business groups are lobbying for national liability protection. For businesses outside these 6 states, waivers may offer some protection: in others they may not.

Are coronavirus liability waivers legal?

In many states, while businesses may request the employee sign a waiver, they may be unenforceable in a court of law. In some states, there are employer protections that support waivers. Employers will need to discuss the validity of any waiver with legal counsel to determine what value they have in their location, if any, and what the specific language should contain.

In some cases, even though the waiver itself isn’t enforceable, it may act as a deterrent. Employees may consider it isn’t worthwhile pursuing legal action after they’ve signed the waiver, particularly if the state or local government hasn’t carved out specific exceptions to them. While it may be only on paper, the waiver may provide some protection for employers.

What to include in a coronavirus liability waiver 

If you’re considering asking employees to sign a waiver of liability, you’ll want to include several areas in the document to protect your business as well as your employee’s rights. Outlining what you’re doing as an organization to take any required measures necessary may provide some protection if lawsuits are brought, particularly in states where no legal guidance has been set. When asking the employee to waive their rights to sue, you’ll want to stress the steps you’re taking to protect them from the virus and include these prominently in any contract.

Outlining what you’re doing as an organization to take any required measures necessary may provide some protection if lawsuits are brought, particularly in states where no legal guidance has been set.

Protect the company from potential viral exposure by requiring employees to:

• Notify the company if they exhibit any symptoms of COVID-19, including fever, cough, shortness of breath, or other symptoms currently outlined by the CDC
• Notify the company if they have had exposure to someone currently testing positive for COVID-19
• Leave work immediately and notify the employer if they are experiencing any of the known symptoms of the virus while on the job
• Notify the company if they have recently been to or been exposed to someone who has traveled from an area either restricted due to COVID-19 or with high rates of the infection

Protect the company from lawsuits:

• Require the employee to waive their rights to sue the company if they are exposed to or contract COVID-19 in the workplace — either from customers, coworkers, or unverified sources.

Protect the employee:

• Notify employees the company will adhere to all guidance provided by the CDC and/or mandates determined by their state or local legislation with regard to safety in the workplace and COVID-19
• Notify employees of their rights to workers’ compensation, company or government mandated sick or family leave, or any other health and wellness benefits will remain unchanged and in force in the event they contract the virus

COVID and workers’ compensation 

Even if an employee has signed a waiver of liability against suing the employer, their rights to workers’ compensation if they contract the virus on the job will not be waived. This caveat may be helpful when asking the employee to sign. Employers can explain that the staff member will still be able to receive benefits — they only waive their right to sue for damages.

OSHA protection

The Occupational Safety and Health Administration has provided guidance for businesses that open or reopen during the pandemic. The document offers information on safe workplace practices and the proper and appropriate use of personal protective equipment based on the worker’s risk level of exposure. Businesses should carefully review and adhere to these guidelines as well as any other pandemic mandates.

Some additional support has come from OSHA in a memo, released in April, noting their own enforcement efforts will take into account an organization’s good faith efforts to minimize risk to employees when they consider compliance and violation actions.

For employers that do not follow OSHA, CDC, or local guidance on employee and workplace safety, a waiver will likely not be sufficient to protect from lawsuits or violation charges. As more businesses reopen to workers and the general public, adherence to whatever guidelines are required by legislators or government agencies will be necessary to protect the business and its employees and customers.

What if employees won’t sign?

For staff members who refuse to sign, the business may be in a difficult position. Will it be worthwhile to terminate that worker’s employment?

If a business owner has worked carefully with legal counsel to draft a waiver that is consistent with the laws of their state, the next step will be to get employees to sign. For staff members who refuse to sign, the business may be in a difficult position. Will it be worthwhile to terminate that worker’s employment?

Some things to consider:

• If the waiver isn’t enforceable in your area, but you’re hoping to have employees sign it as a deterrent, does its value as a deterring factor outweigh the talent of the employee? Remember you’ve invested time and resources hiring and training the staffer. If you’ve made a large investment, the risk of losing them may not be worthwhile.
• If waivers are enforceable in your area, what message does the employee send if they refuse to sign? You’ll need to consider this when determining your course of action.
• What is the level of unemployment in your area? Will it be difficult to replace an employee who refuses to sign? If talent is scarce, you may reconsider the need to sign.

As companies navigate the complexities of returning to work and adjusting to the “new normal” it will be challenging to protect workers and customers. Guidance from the experts provides a pathway, but there may be only so much an organization can do. COVID-19 liability waivers may offer small and medium-sized businesses a bit more confidence for reopening and returning staffers.