“I Would Do Anything for Work, But I Won’t Sign That”: A Discussion of COVID-19 Waivers

Employer or State-Mandated Waivers Put Employees at Risk; Consider Contacting Legal Counsel from the National Employment Lawyers Prior to Signing any Employment-Related Waivers

After months of temporary furloughs and working from home, your employer finally wants you to return to work. You have read about the federal guidelines and your employment-related options and are ready to return to the joys of commuting and office space.

But wait. Your employer wants you to sign a waiver giving up your right to sue if you get COVID-19 on the job. What is this all about?

The Movement to Insulate Businesses from Liability

For months now, some lawmakers have been warning that a surge of COVID-19 lawsuits would further cripple an already damaged economy. As a result, several states such as Alabama, North Carolina, Oklahoma, Iowa, and Utah have passed laws or issued executive orders giving businesses more protection if customers or workers get COVID-19. Many businesses have taken this one step further by requiring customers and employees to sign liability waivers.

Now the federal government has joined the fray, with Republicans pushing to include a COVID-19 liability shield for businesses in the latest stimulus package. “The litigation epidemic has already begun,” claims Senate Majority Leader Mitch McConnell, as he justifies these enhanced protections.

However, a survey of actual COVID-19-related lawsuits tells a different story. Based on data collected by one law firm, 3,071 coronavirus-related complaints have been filed since January 30, 2020. The vast majority of these lawsuits were against businesses for cancellations, postponements, or false advertising. Approximately 200 of them were challenging stay-at-home orders.

Fewer than 70 of these complaints were based on claims related to employment conditions, such as a lack of personal protective equipment or exposure to COVID-19 at work.

Simply put, prior to COVID-19, employers had a responsibility to implement certain safeguards to protect their employees. Why should exposure to a contagious virus be any different, legally speaking, than exposure to asbestos, toxic waste, or other unsafe work conditions? By permitting COVID-19 waivers and barring COVID-19 related lawsuits, employers are inoculated and have no incentive to protect its employees. Meanwhile, thousands of unemployed people are willing to step into those jobs if anyone tries to buck the system.

As a result, many worry what message federal grants of immunity will send to employers and the public at large. Unions and other Labor Advocacy Groups, for example, fear that removing the looming threat of litigation will allow renegade employers to skimp on safety precautions for their workers.

These groups have instead proposed that the federal government issue clearer safety standards for re-opening businesses that can help provide a standard for COVID-19 lawsuits. So far, the White House has rebuffed these guideline-related efforts, claiming that they would impose too much of a burden on businesses.

Employee Options in the Wake of COVID-19 Waivers

Although lawsuits can serve the valuable purpose of publicly exposing dangerous working conditions, they might not be a viable option for an employee’s COVID-19 claims. One reason is that these types of lawsuits can be difficult to prove. This is because these lawsuits require employees to prove their workplace conditions caused their COVID-19 infection, as opposed to another location like a grocery store.

Another reason is that a worker’s compensation claim, not a lawsuit, is typically what employees must file to recover for on-the-job injuries or occupational diseases. Courts have traditionally disfavored employee waiver agreements because of the unequal bargaining power between employer and employee.

In the worker’s compensation arena, waivers of worker’s compensation claims are outright unenforceable in states that view them as a violation of public policy. Since the pandemic began, some states have expanded worker’s compensation coverage to cover employee COVID-19-related claims. These new laws provide a presumption of worker’s compensation coverage for employees in some industries who test positive for, or are impacted by, exposure to COVID-19.

This means that these employees will not have to navigate the difficult waters of proving causation as they would have to with a regular lawsuit. Most of these expansions are limited to health care workers, first responders, and other essential workers. But some states such as California and Kentucky include employees in other industries within their expanded protections.

The Future of COVID-19 Liability Waivers Is Uncertain

So what will happen next? At the end of the day, some think that COVID-19 waivers will discourage employees from returning to work and ultimately hinder the re-opening process. Requiring employee waivers may also result in negative publicity for businesses.

For example, the Las Vegas restaurant chain Nacho Daddy found itself the target of negative publicity after it required employees to sign COVID-19 waivers and swiftly reversed course.

Given that these waivers are a relatively new thing, we will have to wait and see how many employers require them, what happens when employees sign them, and how the courts will treat them.

As always, if you have any questions about whether your employer is committing fraud or retaliating against you as a whistleblower, we are here to help. If you need help with worker’s compensation or other employment-related issues discussed in this blog, contact a lawyer from your state’s chapter of the National Employment Lawyers Association. For a directory of NELA lawyers in Georgia, click here.

Disclaimer: This is not intended to serve as legal advice for individual fact-specific legal cases or as a legal basis for your employment claims.