Are Covid-19 Waivers a Help or a Hindrance?
By Rachel Luna
Many business owners, concerned about potential future COVID-19 exposure claims from employees and/or customers, are deciding whether they should use waivers of liability to help address these concerns. Below is some information to reflect upon before introducing such waivers.
Employee COVID-19 Waivers
Employers must consider a handful of issues before introducing employee waivers, such as:
Legal Limitations and Workers Compensation Issues. Employers should be aware that, in certain circumstances, employee illness waivers are not binding. For example, Texas law generally voids: (1) pre-illness waivers with regard to employees not covered by workers compensation; and (2) any agreement by a covered employee to waive their right to workers compensation. Workers compensation subscribers should also keep in mind that workers compensation is generally an employee’s exclusive remedy for work-related illnesses that arise out of and in the course and scope of work.
Inconsistent and Worrisome Communication. Also, think about the message your company is projecting by asking employees to assume the risk of their safety while at your jobsite and whether this aligns with your communications regarding your ongoing safety measures. Moreover, consider whether requiring a waiver might discourage workers from returning to the workforce and, if so, the impact a diminished workforce could have on your ability to restart or expand operations.
Possible OSHA Problem. Asking employees to assume the risk of COVID-19 at your workplace may also conflict with your OSHA duty to provide a safe workplace, since requiring employees to sign a COVID-19 waiver may be interpreted as asking an employee to assume the risk of an unsafe workplace.
Customer Waivers
COVID-19 waivers may be beneficial for businesses wishing to avoid or limit claims by customers. Business leaders deciding whether to require customer waivers, however, should consider counterbalancing issues such as:
Financial and potential operational costs. Any waiver introduced at your company will need to be carefully prepared specifically for your business. Additionally, requiring waivers may cause potential customers to seek services/goods from your competitors and could result in negative public relations within your community.
Industry-Specific Matters. Whether to introduce customer waivers is also influenced by your industry. If it is common for your industry to require customers to execute waivers or other agreements before receiving services or access to goods (e.g. skydiving companies or gymnastics studios, etc.), adding COVID-19 waiver language within an existing waiver or contract likely will not attract much attention. This is a very different scenario than, for example, a restaurant or retail shop requiring its customers to sign waivers before being allowed access to the premises.
Third-Party Liability. Another important consideration is that waivers likely will not protect your business from claims made by your customers’ family members, roommates, and others who are not party to the waiver and who claim that they became ill through contact with one of your customers.
Other Strategies
In addition to deciding whether to require COVID-19 waivers, small businesses should take steps to protect employees and customers as well as effectively communicate the measures taken to limit exposure. Consider:
Adopting best practices to stop or slow the transmission of COVID-19 and posting notices about such practices, such as implementing social distancing measures, requiring masks, and cleaning and disinfecting per CDC guidance.
Displaying signs of CDC recommendations for staying safe and healthy, and requiring or encouraging employees and customers to follow these recommendations.
Training employees on any COVID-19 initiatives instituted by your company and requiring all employees to confirm, in writing, that they will comply with your safety procedures.
Moving Forward
Unfortunately, no plan exists that can guarantee a workplace is 100% safe from COVID-19 or that a company will not face some liability in the future with regard to COVID-19 claims. However, businesses can and should take steps, which may include the use of tailored waivers in addition to other safety measures, that decrease the likelihood of a future COVID-19 claim.
This update is for informational purposes only and does not provide legal advice. Every legal situation is different and must be independently analyzed by an attorney. Please consult with an attorney for specific guidance.
About Luna Law, PLLC
Luna Law, PLLC, provides a wide array of legal services to small businesses, from the creation of corporate entities and contract negotiation to employment counseling, risk mitigation, and compliance with local, state, and federal regulations. Contact the firm for a consultation or visit RachelLunaLaw.com for more information.