Updated: Sep 13
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
By Anna Dover
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 one second, 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?
Perspectives on the Movement to Insulate Businesses from COVID-19 Liability
For months now, some lawmakers have been warning that a surge of frivolous COVID-19 lawsuits would materialize that 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 workers alike to sign liability waivers that promise not to sue the business if they get COVID-19 on site. Now the federal government has joined the fray with Republicans pushing to include a COVID-19 liability shield for businesses in the latest COVID-19 stimulus package. “The litigation epidemic has already begun,” claimed Senate Majority Leader Mitch McConnell to justify these enhanced protections.
A survey of actual COVID-19 related lawsuits to date, however, tells a different story. Based on data (as of June 25, 2020) collected by one law firm, 3,071 coronavirus-related complaints have been filed since January 30, 2020. The vast majority of these lawsuits, however, were against businesses for cancellations, postponements, or false advertising, and around 200 of them were challenges to 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)—hardly the touted “epidemic.” And 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 incentives to offer protections to its employees, at a time where there are thousands of unemployed willing to step into those jobs if anyone tries to buck the system.
As a result, many worry what message such federal grants of immunity will send to employers and to 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 job-related 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, however, waivers of worker’s compensation claims are outright unenforceable in most states who view them as a violation of public policy. Since the pandemic began, some states have also 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. Although most of these expansions are limited to health care workers, first responders, and other essential workers, some states such as California and Kentucky have included employees in other industries within their expanded protections.
So what will happen next? At the end of the day, some think that employers should not require COVID-19 waivers as they will discourage employees from returning to work and will 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 such negative publicity after it required its employees to sign COVID-19 waivers and swiftly reversed course. Given that these waivers are a relatively new thing, however, 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.
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.
For more on COVID-19:
If you believe you have a whistleblower case and need to find a whistleblower lawyer, you can search the TAFEF membership directory, more than 400 experienced attorneys.
Also, 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, consider contacting a lawyer from your state’s chapter of the National Employment Lawyers Association. For a directory of NELA lawyers in Georgia, click here.