Waiving COVID-19 Liability Goodbye? – Why Liability Waivers are a Particularly Risky Risk-Management Tool

Client Alerts / August 2020

With most counties in Washington now fully in Phase II of Governor Inslee’s ”Stay Home, Stay Healthy” order, Washington employers are increasingly starting to reopen their office doors and welcome their employees back to work.

But even with stringent safety protocols in place, employers still face the uncertainty and risks posed by the COVID-19 pandemic. What happens if an employee contracts COVID-19? Even worse, what if that employee spreads it to other employees? What is the employer’s potential liability to those employees, or to an employee who claims they caught COVID-19 on the job? Employers everywhere are trying to find ways to mitigate and manage this problem.

One reason employers are rightfully concerned about risk mitigation for COVID-19-based claims is because Washington’s Industrial Insurance Act (“IIA”) – what we all know as “workers’ comp” – does not generally provide any immunity to employers for this type of “workplace injury.” Most other workplace accidents are covered by workers’ comp, which immunizes employers from employee lawsuits for their injuries. An injured employee must instead file a claim for workers’ comp through Washington’s Department of Labor & Industries. However, workers’ comp generally will not cover an employee who becomes sick while at work. Under certain circumstances, claims from health care providers and first responders may be allowed for COVID-19. But in most circumstances, and for most employers, the IIA will not immunize employers from suit if an employee contracts COVID-19 while at work.

As businesses seek risk-mitigation solutions outside the workers’ comp system, employee liability waivers have come to the forefront of the discussion. And they sound attractive. The idea being: an employee would sign a liability waiver before returning to work, which would preemptively release any negligence claim the employee might have against their employer for potential exposure to COVID-19 at the workplace. But are liability waivers the answer?

We caution against relying on such liability waivers, as they ultimately may not be enforceable here in Washington. Washington is a remarkably employee-friendly state. Courts are likely to look suspiciously upon such agreements, and given our courts’ proclivity to strike down such preemptive general releases, it is likely that the courts would find that these waivers are void as against public policy. Moreover, if an employer terminates an employee because the employee refuses to sign a liability waiver, that employee would likely have a tort claim against their employer for wrongful discharge in violation of public policy. And then there is the impact on employee morale. Requiring employees to sign a waiver of rights before returning to work could make employees feel less safe and confident in returning to work, and sets a bad tone for what could already be a difficult return-to-work scenario for some employees.

So what can employers do instead? Here are our recommendations:

  1. Communicate, implement, and rigorously enforce a robust COVID-19 safety plan. Take all the recommended steps to reduce the likelihood of exposure at the workplace. Follow CDC and Washington State Labor &Industries Guidelines and carefully document the steps that you are taking. This approach offers the dual benefit of making it difficult for a future potential claimant to prove that they were exposed to the virus at your workplace and doing right by your employees by making their safety a priority.If you do not already have a safety plan in place, take a look at the CH& Return to Work Toolkit as starting place for preparing your own plan.
  2. Have employees sign an acknowledgement when returning to work. Their signed acknowledgement should indicate that the employee knows and understands that there are inherent risks in returning to work and that the company cannot guarantee an environment with 0% risk. However, the acknowledgement should also require that all employees returning to work must agree to strictly comply with your safety and social distancing protocols, and you should advise employees that failure to comply with the protocols is a serious offense that could lead to immediate termination.
  3. If possible, continue to offer alternative options to your more vulnerable employees. If an employee is vulnerable or lives with someone who may be vulnerable, consider offering accommodations if possible, such as continued remote work, or a staggered work schedule that reduces their interaction with employees and customers.

While liability waivers may make sense in limited scenarios, most employers will be better served by managing their risk with effective safety policies. Our CH& Employment attorneys remain ready to help you navigate these issues. We encourage you to reach out with any questions about liability waivers and other changes that the current pandemic continues to have on the workplace.