Michael Morra received his law degree from Widener University Delaware Law School and was a member of the school’s law review. As a practicing attorney for a busy insurance defense firm, Michael handled personal injury and employment law cases. He also taught business law as an adjunct professor at a small New Jersey college.

With businesses finally reopening their doors and coronavirus cases leveling off in some parts of the country, there’s hope that some semblance of normalcy will return to the American workforce. But restarting the economy also brings new challenges.

Many employers are now concerned about being held legally liable for coronavirus infections that arise in the workplace. As a result, some employees are being asked to sign COVID-19 liability waivers upon returning to work.

If you are heading back to work, the thought of signing a waiver might be alarming, especially given that it’s your employer’s job to keep the workplace safe. Even if you decide to sign one, it’s unclear to what extent these agreements will be enforceable due to a number of legal obstacles.

What is a Liability Waiver?

A liability waiver is an agreement in which a party gives up the right to sue another party for damages, such as when a health club requires its members to agree not to sue for injuries that result from using the club’s facilities.

Whether a liability waiver is enforceable depends on contract law, which varies from state to state. All waivers, however, must be clear and unambiguous, and limited to negligent conduct. In other words, a waiver that is designed to exculpate a party for damages caused by reckless or intentional conduct is unenforceable.

Liability Waivers and Workers’ Compensation

Workers’ compensation is a statutory system that serves the interests of both the employee and employer. It helps employees who suffer harm caused by work-related accidents and occupational disease by allowing them to recoup medical, wage loss, and rehabilitation expenses without having to prove that the employer was at fault. At the same time, it protects employers from large judgments by barring personal injury lawsuits and requiring employees to seek redress through a more predictable system.

Workers’ compensation claims cannot be waived, and it’s unlikely that a court would want to undermine the foundation of the workers’ compensation system to enforce a COVID-19 waiver.

In addition, it’s worth noting that a few states have signaled a willingness to include COVID-19 as a compensable occupational disease. By way of executive order, California has made COVID-19 temporarily compensable provided the employee satisfies certain conditions. Wisconsin is another state in which COVID-19 could be compensable if the employee can prove the virus was contracted at work or while performing employment-related duties.

Workplace Safety Regulations

The federal Occupational Safety and Health (OSHA) Act requires employers to keep the workplace safe and free of recognized hazards. Most states have similar laws that sometimes give employees greater protection.

Specific guidelines have been issued at both the federal and state levels of government on how COVID-19 should be addressed in the workplace. The federal government has also published guidelines for reopening businesses in the wake of COVID-19.

Keeping this in mind, enforcing a COVID-19 waiver would arguably allow an employer to avoid its duty to keep the workplace safe and require the employee to assume the risk of working in an unsafe environment. It’s unlikely that most courts would be willing to go down this road.

Public Policy

COVID-19 waivers could be unenforceable based on public policy reasons. Courts in some states, for example, are reluctant to enforce liability waivers in the workplace because of the superior bargaining power that employers wield over employees. A few states, such as Louisiana and Virginia, do not enforce personal injury liability waivers, subject to limited exceptions. Given the highly contagious and deadly nature of the coronavirus, it is hard to believe that courts in these jurisdictions would treat COVID-19 waivers any differently, and it’s conceivable that other states could follow suit.

Practical Problems with COVID-19 Waivers

A number of practical issues might make your employer think twice about using a COVID-19 waiver. Workplace morale, for one thing, might take a dip if your employer is perceived as placing its own economic interests above workplace safety.

Moreover, any waiver you sign will not protect your employer from lawsuits filed by your family if they contract COVID-19 because you were infected at work.

And, a waiver might be unnecessary in those states that have passed laws granting immunity to employers for claims made by workers infected with the virus.

Even if you aren’t asked to sign a waiver, you still might have a difficult time recovering damages if you contract the virus at work. First, you would have to prove that you were infected in the course of your employment, rather than from an exposure that occurred at home or in public. Second, you would have to show that your employer did something wrong. Given the highly contagious nature of the virus, it’s possible that an employer could do everything right when it comes to implementing and enforcing recommended COVID-19 safety guidelines, and still be unable to protect every employee at all times.

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