Employers Wary Of Virus Liability Waivers, New Survey Finds

By Anne Cullen
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Law360 (July 30, 2020, 11:21 PM EDT) -- Although employers have expressed a keen interest in using waivers to try to limit their liability in the event a worker, customer or visitor contracts COVID-19 on-site, very few are pulling the trigger, according to a new survey from Blank Rome LLP.

After surveying roughly 150 employer clients on their pandemic tactics in July, the firm found that only 8% mandate waivers for employees, 6% require them from customers or clients, and even fewer get workplace visitors to sign them.

Brooke Iley, co-chair of Blank Rome's labor and employment practice, said she was surprised by the results, as she told Law360 there's been an "absolute laser-like focus" on liability waivers and it's "the primary thing we're talking about."

While a liability shield appeals to businesses navigating uncharted waters amid the pandemic, Iley said employers are finding that the negatives outweigh the potential benefits.

For employees, they're largely unenforceable. Under the Occupational Safety and Health Act's general duty clause, employers must provide a safe workplace that is free from serious recognized hazards, and someone can't contract away that right, Iley said.

"A waiver is never going to be viable; it's simply a deterrent," she said.

On top of that, workers may perceive the language as giving employers a safe harbor at the expense of their safety. "You create this adversarial environment dynamic between the workforce and management and that doesn't help," Iley said.

"Signing a piece of paper, I think people realize, isn't going to save the day," she added.

Waivers inked by customers, clients or vendors will likely fare better in the courts, but their usefulness is still a big question mark, according to Susan Bickley, a labor and employment partner who heads up Blank Rome's office in Houston.

"They are weighing the message that it sends to their client, customer or vendor against any perceived benefit, and acknowledging that we don't know," Bickley said. "We're in a legal landscape in which we don't know if such waivers will ultimately be enforceable."

Outside of liability waivers, Blank Rome's survey revealed how employers are hedging risk in all facets of their operations while the pandemic continues to impact the country.

International Travel Still Largely a No-Go

Nearly two-thirds of employers are still prohibiting all international travel, according to the report. While more businesses — roughly a quarter surveyed — require approval for international travel, the bump appears to stem from companies that had previously made no changes to their international travel restrictions, rather than those loosening theirs up.

The last survey Blank Rome conducted, from April, showed that a third of employers anticipated the move away from foreign travel would be a lasting legacy of the pandemic, and in the latest report, Blank Rome found the data further cements the virtual business model as the "new business normal."

Employers Embrace Masks and Other Virus Safety Basics

Despite employers' early reluctance to require workers to wear masks, the U.S.'s newly unified message on their effectiveness in preventing the spread of COVID-19 has prompted a complete reversal, and companies are not stopping there.

Nearly all of the companies Blank Rome surveyed require on-site employees to wear masks while also enhancing cleaning protocols and mandating social distancing between workers.

About three-quarters of respondents said they're putting up more signage displaying information about the virus and recommended safety precautions, and many said they're staggering work hours and workdays.

Federal guidance and state and local mandates encourage employers to implement these basic prevention strategies, which Iley says helps mitigate risk. If an employee contracts coronavirus, she said a mandatory mask policy helps the employer fend off scrutiny.

"Having everybody wearing masks, you put yourself in a better position to say it's not something that originated in our workplace," she said.

Waivers Aside, Entrance and Exit Protocols Vary

Employers may be embracing basic prevention strategies inside their facilities, but they're still divided as to what to do at the front door.

According to Blank Rome's survey, half reported that they take employee temperatures and have daily health screenings, a jump from the April data, though their tactics differ widely.

Of those that have committed to health screenings, more than a third said they're relying solely on a self-report policy in which employees must come forward with any issues. Roughly the same number said they'd require screening each day an employee is on-site, while 12% said they only require it once before the employee is permitted to return. The latter figure was unexpected, Iley said.

"The thought that there's anyone out there that would say it's okay to do it just the first [time] the employees enter or once a week is crazy to me," she said.

A small fraction said they're administering coronavirus or antibody tests, a trend Iley doesn't think will take off. "It's a false sense of security, it's hard to manage and the tests aren't completely reliable," she said.

On top of that, she said the companies that have used this method have run into trouble, as employees can perceive a negative diagnosis as clearance to return to normalcy, including congregating in big groups without social distancing. "They all think they're bulletproof because they all have a negative test," Iley said.

Virus Fears and Infection Rates Reinforce Telework's Grip

The nationwide spikes in coronavirus cases have translated into a continued focus on telework and lenient remote work policies, even as federal regulators have thrown down few obstacles to companies that want to bring their workforce back in.

According to Blank Rome's survey, nearly half of employers said the bulk of their workers — from the entire workforce to 85% — are still working remotely, and another 20% said less than half of their employees are working on-site.

"Months into the pandemic, people are being very slow to require on-site work as opposed to remote work when that can be achieved," Bickley said.

The firm's survey also revealed that 73% of employers will let a worker stay home if they say they're afraid of contracting the disease, although the Occupational Safety and Health Administration has made clear a generalized fear of COVID-19 isn't enough reason for a worker to refuse to come in.

Iley said that clients have called her with concerns about the detrimental impact on their business when their workforce can randomly choose to stay home, but she said those same companies are still extremely uneasy about forcing people into the office.

"Employers' heads are spinning," Iley said. "Anyway they slice this, it's a great risk."

--Additional reporting by Jon Steingart and Vin Gurrieri. Editing by Adam LoBelia.

For a reprint of this article, please contact reprints@law360.com.

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