Making Employees Sign a COVID-19 Waiver is a BAD Idea
What we know about COVID-19 has evolved so much over the past five months, forcing companies to be nimbler than ever to protect themselves from coronavirus-related liability. But, amidst this change, one unfortunate constant has emerged: employers continue to ask employees to sign waivers of liability to mitigate the risk if an employee later contracts COVID-19 and sues.
As Eric Meyer and I posted in a FisherBroyles Client Alert today, we neither recommend nor draft these waivers, whether for essential businesses that have been open since March or nonessential businesses that are just bringing their employees back to the workplace. Why? For one simple reason: they are ineffective and likely to do more harm than good.
Waivers won’t bar worker’s compensation claims.
The main reason such waivers don’t work is because the sole remedy for most work-related claims falls under a state’s workers’ compensation statute. In other words, an employee may not sue the employer directly for damages, effectively creating a workers’ compensation bar blocking lawsuits over job-related illnesses. Instead, workers receive limited benefits.
For example, in Maryland, the state’s workers’ compensation law includes occupational disease coverage, and, accordingly, COVID-19 is likely to be a compensable workplace illness.
Other states, like California, have established rebuttable presumptions that certain workers with COVID-19 can pursue claims for workers’ compensation unless the employer can prove the employee contracted the virus outside of work.
In some states, like New York, an injured employee may avoid the workers’ compensation bar if the employee can show “an intentional or deliberate act by the employer directed at causing harm to this particular employee.” Failing to follow proper workplace safeguards under federal and state-recommended guidelines may permit employees in jurisdictions like New York to avoid the exclusivity bar that workers’ compensation coverage otherwise would provide.
While at least ten states already have enacted laws providing some form of immunity for businesses from lawsuits brought by employees and others who contract COVID-19, for many, they only apply if the company is taking safety precautions.
Waivers won’t avoid gross negligence and intentional tort claims either.
A workers’ compensation bar does not prohibit claims for gross negligence or intentional tort claims, and employee-side lawyers are testing these theories during the COVID-19 pandemic.
While workers’ compensation statutes bar most injury claims, if an employer knowingly exposes a worker to COVID-19, the employee may have a general tort liability claim against the company. For example, after one employee contracted COVID-19 and died, his estate sued the corporate employer, alleging that the store knew there were sick employees in the workplace, failed to isolate them, did not properly disinfect the store, and failed to follow federal public health guidelines to prevent spread of the disease.
In another case, the employee is suing for a court order to require compliance with federal safety guidelines, alleging that the company failed to provide sufficient PPE, failed to allow for social distancing, encouraged employees to come to work even when sick, and failed to implement procedures for preventing sick employees from entering the workplace.
A Deterrent Effect?
But, won’t a signed COVID-19 waiver make an employee think twice about suing?
Probably not, and here’s why:
In most states, an employee cannot preemptively waive work-related claims—any such waiver would be unenforceable and void. Indeed, that signed waiver could be Exhibit “A” for a savvy employee-side lawyer to show a jury that the business is evading (or trying to evade) its duty to provide a safe workplace.
Furthermore, these “exculpatory” waivers may violate public policy due to the unequal bargaining power of the parties. Many courts consider exculpatory waivers in the workplace to violate states’ public policy. For example, in North Carolina, the law disfavors contracts “exempting persons from liability for negligence” and strictly construes them against the drafter, yet courts can strike these otherwise valid exculpatory waivers when the clause “violates a statute, is gained through an inequality of bargaining power, or is contrary to a substantial public interest.”
Indeed, North Carolina courts have stricken exculpatory waivers for motorcycle-training classes and cosmetology courses; therefore, it’s hardly a stretch to conclude that a court would do the same for those involved in other such industries, even education. Therefore, employers should not expect to be able to enforce a COVID-19 waiver against employees.
The Answer: Safety Measures
Right now, the best way to defend a wrongful death, negligence, or other general tort lawsuit is to prevent it. Some prudent workplace safety practices for employers:
- Follow the CDC’s Interim Guidance for Businesses, including best practices for social distancing, Guidelines for Cleaning and Disinfecting the workplace, and quarantining employees who have an exposure to a confirmed COVID-19 case, found at the CDC’s Public Health Recommendations for Community Exposure. Here are the CDC’s top 10 tips. Send employees with confirmed cases home until released by a medical professional or until they meet the guidelines for discontinuing self-isolation, providing the employee with any required federal, state, or local leave, or paid time off provided in your employee handbook.
- Ensure that employees are provided and properly wearing masks and other personal protective equipment.
- Educate your employees and communicate. Remind employees of the symptoms of COVID-19 and urge them to seek medical attention if symptoms appear. Check in with isolated sick employees. An employee with whom you engage will be less likely to litigate against their employer.
- Err on the side of transparency when an employee contracts COVID-19 by informing other employees of a confirmed case of COVID-19 in the workplace (without mentioning the name of the infected employee; see our Client Alert regarding this privacy concerns here). The CDC recommends that employers notify potentially exposed co-workers of confirmed cases. Though there is no law on this yet, OSHA may ultimately determine that a failure to notify employees of a confirmed COVID-19 case is a violation of OSHA’s general duty clause, the agency’s generic requirement to maintain a safe work.
- Finally, instead of a waiver, consider asking employees to execute an acknowledgment that they will comply with workplace safety measures and otherwise take reasonable steps to avoid the transmission of COVID-19.
The takeaway here is simple: proactive employers better protect themselves and their workforces by mitigating risk with detailed safety and communication plans and procedures communicated to employees.