COVID-19 liability waivers could open a legal and business Pandora’s Box with little value in return. Employers should think hard and assess the risk-benefit matrix of such waivers carefully because the damage could well outweigh the benefits.
Many organizations are turning to these waivers as almost a business flavor-of-the-month. But the bitter taste may linger well after the sugar rush of a supposed lawsuit protection mechanism. The assessment of the utility of such waivers should comprise three principle questions.
First, what does insistence on a waiver of liability in the event a returning employee becomes ill say to the work force and, by extension through the wonders of social media, to the customer base about the employer’s confidence in his or her efforts to create a safe workplace? The business reputation damage from such waivers and attendant publicity (and perhaps regulatory scrutiny) may outweigh any potential protection.
Second, is such a waiver necessary? In many states, lawsuits claiming damages from workplace illnesses are barred by Workers’ Compensation laws. In states where such suits may proceed, can the very high bar of proximate causation be overcome? The ubiquity of the coronavirus is well known and reinforced daily by public service announcements in the media and the presence of face coverings and practice of social distancing. Could an employee reasonably be expected to prevail on a claim that a deficiency in cleaning or disinfecting her desks and the building elevators was the competent producing cause of her illness when so many other vectors could have been responsible?
Third, is such a waiver enforceable? Waivers are agreements, and basic contract law states that an agreement is enforceable only where there has been a meeting of the minds. Insistence by an employer on a liability waiver as a condition of employment may, in the eyes of some judges, be viewed as coercion and so the employee’s signature obtained under such coercion may not be valid assent to the terms of that agreement. Further, one can only waive risks of which one can reasonably be aware and employees may not be sufficiently knowledgeable of the risks of infection at their worksite. On the other hand, in the US, employees regularly sign waivers of privacy with regard to their communications on company information systems. Some courts may consider COVID-19 liability waivers in a similar light, but many will not and may even consider such waivers void as against public policy or contrary to the OSHA (Occupational Safety and Health Administration) mandate that the employer must provide a safe workplace.
Learning whether your liability waiver is enforceable may be a very expensive undertaking. And once the employee morale and business reputation genie is out of the bottle, it’s very hard to get it back in.
If you have questions or are in need of advice regarding the advisability of COVID-19 liability waivers, please contact Kenneth N. Rashbaum or Philip S. Mortensen.
