Some businesses are considering limiting their liability from COVID-19 infections in their facilities and workplaces through liability waivers for employees, guests, and other visitors. Are they a good idea? Probably not. Here’s why.
Employer return-to-work COVID-19 waivers are problematic for a variety of reasons, most notably, the fact that they are likely an impermissible prospective (future) waiver of workers’ compensation claims. Basically, workers cannot release their claims under workers’ compensation laws for illnesses or injuries that have not yet occurred. (An exception to this rule is waivers for voluntary recreational activities, for which the Ohio Bureau of Workers’ Compensation has a required waiver form.) In the event that an employee successfully claimed that his/her illness fell outside of the workers’ compensation system, which would require proof of willful or intentional conduct that resulted in the employee’s COVID-19 illness, it is possible that the waiver would be useful, but unlikely. Why? Prospective waivers are rarely effective against intentional conduct.
Additionally, if the employee brought the COVID-19 virus home to family members or those with whom they live, it is unlikely that the employee’s waiver would effectively waive the claims of other adults (without their signature) or a child (without the signature of the other parent).
With the limited usefulness, why take the risk of alienating employees by asking them to sign something assuming the risk that they might contract COVID-19 in the workplace? A better approach is to follow all CDC, OSHA, and state health department guidance for reopening workplaces. Ohio’s sector specific operating requirements are available here.
Visitor and guest waivers
This category includes non-employees: guests, vendors, customers, etc. Workers’ compensation laws are not an issue. There are non-legal reasons that waivers are a bad idea for this group, for example: public relations, customer relations, logistics, and record keeping. Legally, prospective waivers may be effective against negligence claims, but just like employees, they will not hold up against gross negligence or intentional tort claims.
As with employees, an alternative to waivers is following CDC, OSHA, and state and local health department guidance on cleaning, social distancing, face coverings, capacity limits, and other requirements. Businesses also could consider posting signs on hygiene practices, encouraging face coverings, social distancing, and hand washing, and requiring those who are ill not to enter the business. The CDC has examples of these posters: face coverings, symptoms of coronavirus, hygiene, and stay home if you are sick. The Ohio Department of Health has its owns posters, available here.