Question of the Day: Employee Waivers

May 6, 2020

By Patrick D. Smith and Edgar R. Ocampo

Question

I am concerned about legal claims from employees or their family members who may allege that the employee contracted COVID-19 at the workplace and then spread it to family members. Does an employer have the right to require employees to waive such claims as a condition of returning to work?

Answer

We recommend against asking employees to sign such waivers because these waivers are likely not enforceable and may even have other unintended legal consequences.

“Return-to-Work” Waivers

With respect to “Return-to-Work” waivers, there are two fundamental issues. First, workers’ compensation laws are generally an employee’s exclusive remedy against an employer for work-related injuries or occupational diseases that arise out of and in the course and scope of employment. In most states, an employee’s waiver of his or her right to receive workers’ compensation benefits because of a work-related injury or disease that may occur in the future would be void as against public policy, or otherwise unenforceable. Some states impose penalties or other sanctions on employers that try to avoid workers’ compensation liability through waivers.

Second, requiring an employee to waive a claim for a COVID-19 related illness arising out of workplace exposure may be evidence that the employer is attempting to avoid its statutory obligation under the Occupational Safety and Health Administration (OSHA) Act’s General Duty Clause to provide a safe workplace:

“Each employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his or her employees; and (2) shall comply with occupational safety and health standards promulgated under this Act…”

Asking an employee to sign a waiver effectively requires the employee to assume the risk the workplace is unsafe, which could violate its obligation under OSHA.

It is also doubtful an employee has the right to waive claims by family members who contract COVID-19 from the employee who was exposed at work. The employee cannot waive injury claims on behalf of an adult spouse. While a parent generally has the right to waive claims on behalf of minor children, it is unclear whether a court would enforce such a waiver made by only one parent who was compelled to sign the waiver as a condition of returning to work.

While employee COVID-19 waivers are not recommended, such waivers may be a viable tool for avoiding or limiting claims from independent contractors or vendor employees. In that case, the waiver should be in the agreement with the independent contractor or vendor and include the right to indemnity in the event the independent contractor’s or vendor’s employee makes a claim.

Alternative to Waivers

In lieu of employee COVID-19 waivers, as part of their return to work procedures, employers should clearly and effectively communicate with their employees the measures the employer has taken to prevent and mitigate any spread of COVID-19 in the workplace. In doing so, employers should consider requesting employees to sign an acknowledgment and receipt of company “Best Practices” or policies regarding the COVID-19 pandemic.

This acknowledgment should contain language to the effect that, despite its best effort to mitigate the virus in the workplace, the employer does not have the ability to supervise every employee’s actions throughout the day and cannot guarantee with certainty an employee will not contract the virus. Further, the acknowledgement should provide reporting procedures for employees who feel a co-worker is not adhering to company policies.

For more information, please contact your Fredrikson & Byron attorney.


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Fredrikson & Byron’s COVID-19 Resource Center