Want Workers To Sign COVID-19 Waivers? Don't Go There.

By Braden Campbell
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Law360 (July 1, 2020, 9:06 PM EDT) -- Employment lawyers say they're getting more and more queries from businesses about whether they should force employees to sign COVID-19 liability waivers before returning to the workplace. Unlike many of the nettlesome questions attorneys have to field, this one has a simple answer: No.

To be effective, these contracts must survive scrutiny by skeptical judges applying laws that often outright forbid liability waivers. And they provide workers' attorneys ammunition to show employers are shirking their duty to provide a safe workplace, experts say.

"There's really almost no chance of them being enforced," said David Barron, a member with management-side firm Cozen O'Connor. "The corollary to that is it's just evidence [workers] may use against you."

Months after the national economy ground to a halt, many areas of the country are returning to in-person work in some capacity, even as the coronavirus remains a threat. If the virus spreads in the workplace, employees have several means of recourse that employers would theoretically like to limit.

The legal tools available for workers who fall ill include workers' compensation, which provides cash payments to those who can't work because of job-related injuries and illnesses. These state-law programs generally don't let workers collect unless they show they got sick on the job, which can be tougher to prove for an airborne illness than a chemical burn or other obvious workplace injury. But some states are now presuming that sick workers caught the virus on the job, making it easier for workers to get payouts and raising the risks for their employers.

These laws generally block lawsuits over job-related illnesses, and provide workers limited benefits. But the so-called workers' comp bar doesn't block gross negligence or intentional tort claims, and plaintiffs attorneys are testing novel theories in the pandemic.

Barron, who practices in hard-hit Houston, said many employers have asked about limiting these risks by imposing liability waivers. He's advised clients against using them for several reasons, including their limited utility.

Many state workers' compensation laws forbid waivers, and judges are apt to say such contracts are unfair even in jurisdictions that don't explicitly bar them, Barron said. Even worse for employers, they could backfire.

"It's something that good plaintiffs lawyers would use," Barron said. "Let's just say someone is sick. If they take time off and they get fired, [the waiver could be] evidence that you're not taking it seriously or you're looking to punish workers who do have COVID."

Gerald Maatman, a Seyfarth Shaw LLP partner who represents employers in high-stakes litigation, said attorneys in his firm have fielded questions about having workers sign waivers. Maatman and his colleagues have likewise shot them down.

Aside from the likelihood that judges will tear them up, COVID-19 waivers pose several practical concerns for employers, Maatman said. For example, employers will likely hurt morale by asking workers to give up their protections and may face unfair termination claims if they fire workers for refusing to sign waivers, he said.

"Using them with employees seems to have many, many impediments," Maatman said.

But some employers are nonetheless foisting waivers on workers, said Hugh Baran, a staff attorney with the National Employment Law Project who advocates against arbitration mandates and other obstacles to the courthouse. The group has fielded reports that employers are making a wide array of workers sign such pacts, including construction, dental and hospitality workers, waitstaff, hairdressers and graduate student-teachers, he said.

"They're … occupations that involve close contact with people, and in so many ways, they're the workers who are most at risk, in terms of the way we know COVID-19 spreads," he said.

And these workers can't assume that courts won't enforce their contracts, Baran said. The notion that judges will reject COVID-19 waivers comes from old rulings recognizing a power imbalance between employers and workers. Because employers hold all the cards, it's unfair for them to make workers give up what little power they have, the reasoning goes. But recent rulings allowing mandatory arbitration contracts show judges are not as sympathetic to workers as they may have been in the past, Baran said.

"Whether or not these are ultimately unenforceable, liability waivers put workers in a terrible bind," Baran said. "Do you sign and potentially give up your legal recourse? Or do you refuse and risk losing your job?"

Waivers may also dissuade workers from complaining to government safety enforcers or otherwise exercising rights they think they've signed away, Baran said.

Michael Duff, a workers' compensation professor at the University of Wyoming College of Law, co-signed Baran's uncertainty.

It's well-recognized by the courts that people can waive civil liability outside the workplace, with some exceptions, Duff said. A patient can't be forced to waive his rights upon admission to the intensive care unit, for example.

But judges haven't said how far this principle extends into the modern workplace because workers' compensation law has generally prevented the question from reaching them, Duff said.

"In many areas of law, the way we sort of analyze this and assess it is unless somebody's holding a gun against your head, you're free not to enter into an agreement," Duff said. "In an environment where unemployment is increasing, the line between what is coercive and what is not can become blurred."

--Editing by Aaron Pelc.

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