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Ask an HR Expert
Jun 26, 2020 8:51:59 AM
Question: Should I have my employee sign a COVID-19 waiver?
Answer: It is not recommended as these waivers are limited in their effectiveness and may have other negative consequences.
With businesses returning employees to work and reopening their doors to customers, employers are looking for ways to limit liability related to COVID-19 infections. Some employers are considering if they should use a waiver, which, as defined, is a document waiving a right or a claim. Some employers have already tried to do so with their employees and found that they faced bad publicity as well as employees who became even more concerned that returning to work would be risky or unsafe.No waiver can replace the need to maintain a safe workplace. OSHA requires employers to provide each employee with a workplace that is free from recognized hazards that are causing, or are likely to cause, death, or serious physical harm. Good infection control practices are important to keep workers safe as COVID-19 outbreaks may come and go. And employees waiving their workers’ compensation rights are generally unenforceable under state workers’ compensation laws.
The President signed an executive order urging agencies such as OSHA to provide leniency toward businesses that are endeavoring to follow agency regulations and best practices guidelines during the COVID-19 pandemic. Oklahoma is one of the states that passed legislation providing immunity; Oklahoma gives employers immunity from civil liability in employee lawsuits alleging injuries from exposure or potential exposure to COVID-19 if the employer followed applicable government guidance, regulations, or orders. Conversely, California Governor Newsom signed an Executive Order, which creates a rebuttable presumption that employees who are diagnosed with COVID-19 contracted the virus at work and are entitled to workers’ compensation benefits.
As an alternative to waivers, actions employers can take to reduce liability and keep employees safe include:
- Communicate the safety measures the employer has taken to prevent and mitigate the spread of COVID-19.
- Communicate the safety measures the employee should continue taking, such as social distancing, frequent washing of hands, and self-testing for symptoms.
- Have policies and procedures in place that comply with the most recent recommendations from the CDC, OSHA, EEOC, and state and local health authorities. Consider having employees sign an acknowledgment that they have received a copy of the policies and will comply.
With regards to customers and vendors, a business needs to decide if the benefits of signing waivers outweigh other considerations, such as customer reaction. While waivers are common in extreme sports like skydiving, customers do not expect to sign a waiver when entering a restaurant. A business should look at its business model, industry, and geographic area. They may decide it is preferable to have notices or questionnaires instead of waivers.
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