Employee COVID-19 liability waivers seem like a legal no brainer, right? The reality, however, is not that simple.

Naturally, you want to protect yourself against lawsuits during this already precarious time for businesses. However, there are several reasons why you might want to reconsider having employees sign a waiver and release form for coronavirus, which we outline below.

PR Nightmares related to COVID-19 waivers

COVID-19 is the most widespread pandemic in over 100 years and has been a major shock to the economy. 

As we open up lockdowns and return to some level of normalcy, those who disagree with coronavirus waivers and COVID-19 reopening policies, in general, are making major waves in the media when they decline to sign, denting several businesses’ reputations.

At the core of this issue is the idea that it is safe to return to work. If it’s so safe, the argument goes, why are you having me sign this waiver? 

The Last Vegas restaurant chain Nacho Daddy was one such business that faced media backlash. They were accused of firing those who refused to sign employee coronavirus release of liability waivers, but after facing media backlash they removed the release of liability clause and instead worded the document as an agreement to follow COVID-19 guidelines.

Another high-profile case involved a Montessori teacher in Irvine with a compromised immune system. She learned that the children in her class would not be required to wear masks, so she refused to sign a waiver and was fired a week later. There are also several cases of schools and school districts that sent out COVID-19 waivers, particularly for athletics, only to walk back on them.

Coronavirus waivers may not be enforceable in a court of law

It is highly unlikely that these waivers would ultimately hold up in US courts. In a time of unprecedented job insecurity with US unemployment sitting at 10.2% as of July 2020, any attempt to force employees to waive their right to sue is a massive power imbalance due to desperation in the market. 

A release of liability waiver for COVID-19 would also illegally conflict with many states’ workers’ compensation programs.

That being said, many employers are having their employees sign safety waivers in which they agree to comply with COVID-19 workplace safety rules. This is a more legally acceptable alternative to waive responsibility should an employee be accused of negligent behavior, and many of our users have been using our online form building and signing tool to have their employees sign these documents digitally. This also allows employers to retain a running record of compliance without having to worry about a literal paper trail.

Negligence and COVID-19: What do I Need to Know?

Your best defense against a lawsuit, as always, is to make sure you are observing duty of care and following state and local coronavirus public health bylaws to the letter. Any successful lawsuit against your business would have to be predicated on gross negligence as it related to preventing the spread of COVID.

Gross negligence is, by definition, a flagrant violation of your duty of care. When discussing coronavirus negligence for employers, that could be any number of factors in which you fail to meet state and local COVID-19 safety standards:

• Failure to inform staff of proper COVID-19 working protocols, and a lack of related signage
• Failing to create a safe indoor environment with proper social distancing measures
• Lack of proper PPE to employees and enforcing its use where it is required
• Not ensuring those who experience COVID-19 symptoms stay home
• Failure to allow for full or part-time remote work/learning where possible
• Resisting the shut down of a facility despite knowledge of a potential COVID-19 infection
• Not informing staff that they may have been exposed to someone who later tested positive for COVID-19

It is important to ensure your reopening plan is comprehensive, that staff are well-trained, that you comply with your COVID-19 guidelines, and you keep meticulous records of any infraction in case you are ever taken to court for a claim related to COVID-19.