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As employers make plans to bring their employees back to the workplace in the fall, questions over liability and responsibility are leading some to require workers to sign waivers or acknowledgments concerning COVID-19. However, experts question whether these documents may be necessary, advisable or even enforceable.
Companies are “absolutely” concerned about the liability issue of workers coming down with COVID-19 after returning to the workplace, said Matt Zender, Las Vegas-based senior vice president of workers compensation strategy at AmTrust Financial Services Inc.
“I think the reason people are concerned about it is it’s not always 100% clear whether or not you have taken all the steps you might need to (to protect workers from COVID-19),” he said. “We see businesses feeling more comfortable having employees sign a waiver that indicates that they’ve done everything they possibly can imagine. But I’m not entirely convinced that the waivers will actually have any legal standing.”
The pandemic has raised significant questions over liability, with bills proposed at the federal level attempting to limit liability of employers for workers who become sick during the pandemic, and some states passing legislation to make it easier for employees who purportedly contract COVID-19 at work to receive workers compensation.
Many companies are asking their legal counsel about waivers, but “you can’t waive certain rights that an employee might have,” such as workers compensation or the ability to file a complaint with the U.S. Occupational Safety and Health Administration, said Michael Weber, shareholder in the New York office of Littler Mendelson P.C.
“If the employer is doing nothing to ensure safety, it’s going to be liable — it could even be gross negligence outside of workers comp,” said David Sherwyn, Itasca, New York-based law professor at the Cornell University School of Hotel Administration. “Do you really need to say, ‘You can’t sue me,’ or do you really just need to let people know that this is dangerous and we’re going to do everything we can to keep you safe?”
Rather than a waiver, Mr. Sherwyn suggests having workers sign an acknowledgment — a form of social contract acknowledging that “both sides have obligations and we’re going to ask you to comply.”
For instance, the acknowledgment can explain that the employer is going to follow U.S. Centers for Disease Control and Prevention guidelines and take all necessary precautions to prevent the spread of COVID-19 at work, but also ask employees to comply with mandates on wearing masks, social distancing and not coming to work if they have symptoms or believe they were exposed to somebody with COVID-19, he said.
“If done properly, (these acknowledgments) can help shape the narrative about the employees’ view of how you’re protecting them,” Mr. Zender said. “Employers who try to think about this as a way to protect themselves from being sued are missing the point. It’s a way to protect employees from being exposed to the extent that they can possibly control.”
However, there is a strong incentive for employers to want to limit their liability. At Littler, Mr. Weber said the firm is monitoring about 400 COVID-19-related lawsuits in a wide range of industries that have been brought in the last 60 days by employees alleging everything from discrimination and negligence for insufficient workplace protections to being constructively discharged for refusing to return to the workplace.
“Not to minimize concerns, but we’re on the phone every day with our clients giving appropriate guidance, and we’re comfortable with that advice,” he said. “The challenge is when (workers) simply refuse to come back to work.”
While employees who refuse to sign a waiver of their company’s liability may have grounds to challenge their employer, those who refuse to sign an acknowledgment of new office protocols based on federal and state guidance to protect others and themselves from COVID-19 may be justifiably eliminated from the job site, said Susan Bickley, chair of the Houston office of Blank Rome LLP.
“If it’s an acknowledgment of, ‘Here are the protocols we have in place, please sign with respect to the fact that you’ve seen the information and agree to comply,’ and you have someone who is affirmatively stating that they will not agree to them — I think that’s grounds for not allowing them into your workplace,” she said.
These acknowledgments are also helpful when workers want to return to the office or resume business travel but are not being required to as part of their job, said Susan Gross Sholinsky, New York-based member of Epstein Becker Green P.C.
“The purpose of that really is to show that the employer … is taking as many precautions as they can to ensure that employees are following the protocols if they come into the office,” she said. “It also certainly avoids the argument that somebody was unnecessarily made to come into the office.”
In a survey of 150 business executives in July by Blank Rome, about 8% said they will mandate that employees sign waivers before returning to the workplace.
“I think most employers, as the survey suggests, have concluded that it frankly just sends the wrong message to their employees,” Ms. Bickley said. “I think it introduces an adversarial component into the employment relationship. Particularly at this time, you have to question whether it’s a wise idea.”
More insurance and workers compensation news on the coronavirus crisis here.