No business wants unexpected liabilities.
People across the country are returning to work in high-contact and other industries. It's not just retail and the restaurant trade that are involved. Think of workers in a laboratory, prototyping, or design space. High technology industries need to be aware of these issues.
Employers are searching for the best way to protect themselves from litigation and to limit their liability if their employees, visitors or customers contract COVID-19 from their places of business. Some are requiring customers, visitors and employees to execute written waivers to protect their businesses from legal actions, but employers should be aware that such waivers are not without limits or problems.
A waiver can reduce or eliminate certain liability risks. But it's not a universal remedy. For example, if an individual were to rent a jet ski, he or she would have to sign a waiver releasing the rental company from liability if that individual were injured in a collision. However, if that individual were injured when the jet ski fell apart due to grossly poor maintenance, a waiver would probably not protect the company from its gross negligence should litigation ensue.
The Importance of a Safe Environment
The best way to protect your business from liability at any time—not just during a pandemic—is to maintain a safe, healthy workplace. That approach has special requirements during a pandemic.
It starts with the basics — ensuring proper maintenance of equipment and providing adequate training and supervision of staff. Waivers should not be used as assumed remedies for underlying problems. When an employee is injured or becomes sick because of a deficient workplace, a waiver won't provide adequate protection for the employer.
To more effectively limit your liability as a business owner, begin by ensuring that you are compliant with local, state, and federal health and safety regulations. Government agencies, including the Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control and Prevention (CDC) regularly publish guidance on their websites and regulations surrounding safe workplace environments. Also, train your staff in complying with these rules. If your business is in violation of OSHA's rules, or fails to follow CDC advice, a waiver may not be effective in limiting liability.
Waivers between employers and employees present an imbalance in power dynamic.
As such, they are generally viewed unfavorably by the courts in a lawsuit. For example, gross negligence by an employer cannot generally be waived. If an employer fails to implement proper COVID-19 precautions and an employee becomes seriously ill, a waiver isn't likely to offer much protection. And, in any event, workers' compensation usually steps in to cover medical bills and lost wages if an employee is injured on the job. A waiver isn't going to trump workers' compensation claims — which will lead to higher premiums for the employer.
Furthermore, if an employer is in violation of OSHA regulations or the workplace is found to be dangerous, an employee waiver won't hold any more weight than a blank sheet of paper.
If you choose to use waivers, they should be part of an integrated plan of action. For the best level of protection, businesses should take additional steps. We recommend that businesses require all employees to take COVID-19 training, limit the number of patrons in enclosed areas, install markers to encourage six-foot social distancing, record customer contact information, and even take employee temperatures before each shift. These are all effective ways to reduce liability if someone contracts the virus at your place of business.
Customer waivers (and this would include non-employee visitors) may be slightly more effective at reducing liability than employee waivers, but they are also more likely to hurt your bottom line. Waivers are expected for certain, high-risk activities, such as jet skiing and bungee jumping, but requiring customers to sign a waiver before working out in your gym or visiting your facility to assess your operations is bound to scare some people away.
Customer waivers have limits, too. As with employee waivers, businesses cannot eliminate liability for gross negligence.