August/September 2020  Volume 18, Number 4        

person signing document

COVID-19 Liability Waivers

At a recent campaign rally attendees were asked to sign liability waivers to protect against lawsuits related to contracting Covid-19. Many businesses are doing the same with customers and employees.

As businesses reopen around the country customers and even employees might be asked to sign liability waivers saying that they won't sue if they catch COVID-19.

Even if they follow the precautions put out by the Centers for Disease Control, many businesses feel they are still vulnerable to lawsuits.

Some states are trying to alleviate the concerns of business by passing legislation holding business harmless for allegations of liability arising from COVID-19 infections. Five states to date — Utah, North Carolina, Oklahoma, Arkansas and Alabama — have done so already.

Critics of the waivers and the legislations argue that these defenses allow employers to neglect taking proper precautions such as erecting Plexiglass barriers, providing masks and requiring they be worn and having people maintain at least six feet of distance.

Attorneys such as Hugh Baran with the National Employee Law Project, a worker advocacy group, say that the workers are put in a terrible position. "Do you sign this and potentially give up your legal recourse or do you refuse and feel like you are going to lose your job?" he said to a reporter from the Syracuse Post Standard in Syracuse New York.

On the other hand, by refusing to sign the waiver, employees risk losing unemployment benefits.

Will the Waivers Hold up in Court?

According to attorney Sohn Wolohan, a law professor at Syracuse University, in 45 states and the District of Columbia courts generally uphold voluntary waivers. In any case, some businesses are taking a better safe than sorry approach.

Chreyl Falvey, a partner at the Crowell and Moring law firm in Washington, D.C., says the waivers wouldn't hold up in situations where someone is infected by a person who signed a waiver, as they weren't party to the waiver agreement.

While the waivers are often required of customers, it doesn't appear that most employers are requiring employees to sign liability waivers. Often, though, they are asking returning employees to declare whether they are infected or have reason to believe they may have been infected with COVID-19. One widely available form on the internet used by some employers is called the "Coronavirus Self Declaration Form." It says that in the interest of "the health and safety of our community, declaration of illness is required. Be sure that the information you'll give is accurate and complete. Please get immediate medical attention if you have any of the COVID-19 signs." It then lists COVID-19 symptoms and asks related questions and requires employee to attest to the accuracy of their statements.

As reported by the Associated Press, as of the second week of June there were 2,741 lawsuits filed in the U.S. over COVID-19 infections, according to a complaint tracker maintained by the Hunton Andrews Kurth law firm. Many of the cases were over government shutdown orders and which businesses were deemed essential. Only seven came from consumers and 49 were filed by employees over exposure to the virus or other related injuries. It is thought that federal legislation would be the best way to prevent a huge surge of litigation against employers.

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In this issue:

This Just In...

COVID-19 Impact on Workers Compensation Industry

COVID-19 Liability Waivers

How Does Self-Insured Workers Compensation Work?

Excess Workers Compensation Comes in Two Basic Formats.



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