Covid-19 Liability Waivers at Work

Featured Future of Work

Covid-19 liability waivers are the hottest topic in sports these days as parents take their kids to soccer and baseball games which have resumed in many states. They are also being used at campaign rallies and elsewhere.

By the way, A search for the term Covid-19 liability waivers brings up a surprising number of results to various YMCAs around the country such as this one in the Twin Cities.

You may be wondering if you should have your employees sign one. According to LAW360. “It is unlikely courts would enforce run-of-the-mill COVID-19 waivers.” The article is written by Isaac Mamaysky and Mark Papadopoulos, partners at Potomac Law Group PLLC.

But what about liability for customers? Should they be forced to sign a waiver? This is what they say:

Any business thinking of doing so, however, should carefully consider the alternatives and whether this is really a necessary step for the business. Waiver agreements are by no means a panacea and must be carefully drafted for the appropriate settings to have any legal effect. Even when drafted properly, a lengthy liability waiver might not be the best way to begin a relationship with customers, who have many competing businesses vying for their attention.

Erik Larson at Bloomberg Law says that many employee lawsuits related to Covid will be covered by Workers’ Compensation insurance.

“With Covid-19 still spreading, companies that require employees to work on-site or interact with the public will need to be careful to avoid winding up in court,” says Samuel Estreicher, a professor at New York University’s law school and director of its Center for Labor and Employment Law. “Legal risks will be one of the key things for businesses to prepare for as the economy reopens.”

What’s less clear is whether those claims will succeed, because states define differently what’s covered under “occupational diseases” provisions. And labor advocates say the system isn’t always friendly to workers, often denying claims or providing payouts well below lost wages and medical bills. “This could be such a massive number of claims that there could be some pushback from the system,” Estreicher says. “Smart employers, in my view, would not fight workers’ comp claims. If they’re in workers’ comp, there’s a much lower risk of damages, and you share that burden with other companies.”

In many states, workers’ comp doesn’t cover ordinary infectious diseases. Labor advocates have urged changes in those policies or asked for assurances that Covid-19 claims will be honored. In New York, with more infections than any other state, Governor Andrew Cuomo said in March that claims will be covered under workers’ comp law, though few other states have clarified their policies.

A wave of personal injury cases against businesses that reopen could bankrupt some companies ailing from the post-pandemic slump, the U.S. Chamber of Commerce said in April. Republicans in Congress are seeking to pass legislation to shield businesses from liability for future Covid outbreaks.

The point here is you need to follow all federal and state guidelines for opening safely and if possible, exceed them. Perhaps just as important as liability is gaining or keeping the trust of workers and customers – letting them know their safety is of paramount concern to your organization.