A waiver in this context means that the employer is looking to limit its liability by having an employee disclaim his/her ability to sue in the event of contracting COVID-19. Having employees sign a waiver of rights with respect to COVID-19 as a condition of initial or ongoing employment is not advisable, for both legal and practical reasons.

General Legal Considerations

Generally speaking, waivers in the employer-employee relationship aren’t favored due to the unequal bargaining power between the parties. Therefore, in most states, waivers do not apply to gross negligence or willful or intentional misconduct by the employer. Some states have held that personal injury liability waivers are unenforceable as well.

Workers Compensation Considerations

Workers compensation helps employees who suffer harm caused by work-related accidents and occupational disease. Although the treatment of COVID related claims under workers compensation rules generally remains unclear, at least a few states have shown a willingness to include COVID-19 as a compensable occupational disease. Employees typically cannot waive their rights with respect to workers compensation claims.

Additionally, if an employer knowingly exposes a worker to COVID-19, the employee may have a general tort liability claim against the company. At least one employee has already filed suit against his/her employer on the basis that the employer failed to implement procedures to keep sick employees from entering the workplace.

OSHA Considerations

Having employees sign COVID-19 waivers is also not advisable due to OSHA (Occupational Safety and Health Administration) considerations. Under OSHA’s General Duty Clause, employers have a duty to provide a safe workplace. By asking an employee to sign a COVID-19 waiver, an employer is asking the employee to assume the workplace is unsafe, which could be considered an OSHA violation

Practical Considerations

Perhaps even more compelling than the legal considerations of asking employees to sign COVID-19 waivers are the practical considerations. Employees are under a level of stress not not yet likely experienced during their careers. They have both increased health and safety concerns and likely increased job responsibilities as a result of increased training and cleaning procedures. Employees are looking to their employers to take the steps necessary to make sure they are safe and protected. Asking employees to sign a document stating they won’t sue if they get sick doesn’t create an image of safety and protection.

That being said, it is both acceptable and advisable to promote a safe workplace and have rules and procedures in place to both protect employees and the company.

Tips for Minimizing Employment-Based COVID-19 Risk

It is both possible to protect employees and at the same time minimize your legal liability/risk by taking the following steps:

• Follow CDC Guidance. The CDC provides guidance on everything from cleaning and social distancing procedures to guidelines on quarantining sick employees and return to work guidance after an employee has self isolated.Check out more information here.
• Provide PPE. Make sure that employees are wearing facial coverings and other personal protective equipment as suggested by both the CDC and your state and local governments and industry associations.
• Conduct employee screening assessments. It is a best practice (and often state mandated) to conduct screenings assessments of employees before the start of each shift/work day. This allows employers to confirm whether it is safe for an employee to report to work based on the presence of COVID-19 symptoms and exposure risks. Employers have the right to ask employees these questions to try to increase the safety of their employees and employees will be comforted by the fact that employers are taking their health and safety seriously. You can save time and further minimize risk by automating these assessments. Check out Portal Green’s S.A.F.E. for Work screening solution.
• Educate employees about safety and cleanliness standards. It is important to keep up to date on cleanliness standards, document those standards and train and routinely provide updated and reminders to employees.
• Be transparent with employees. Although you are not permitted to share that a specific employee has contracted COVID-19 due the confidential medical nature of such information, you are permitted and advised to share with employees that have come in close contact with a co-worker that has tested positive for COVID-19. Additionally, inform employees of the actions you have taken, including both subsequent cleaning efforts and that you asked impacted employees to stay home to self-isolate for the recommended time frames.
• Employee Acknowledgments. Although waivers are not advisable, having employees sign acknowledgments can be a substitute for mitigating risk. Document procedures and steps taken as outlined above and ask employees to sign a document that they acknowledge the new procedures and that they will both adhere to them and take steps to avoid the transmission of COVID-19. This both illustrates to employees that the employer is taking the necessary steps but at the same time doesn’t make the employee feel like he/she is giving away rights.