Should you require COVID-19 liability waivers?

With a global pandemic underway, a lot of companies are requiring their employees and/or customers to sign liability waivers in case they get COVID-19. Should your business do this?

Consider that your liability for COVID-19 exposure is unclear, especially if you follow the guidelines from the Centers for Disease Control and Prevention (CDC). Moreover, some states and the federal Senate are considering bills that would shield businesses from liability if they followed the CDC’s recommendations but someone got sick anyway.

Also, consider that your policy should be specific to employees and to customers. You may want to require waivers from one group but not the other.

When you require an employee to sign a liability waiver, you may be putting them in a very uncomfortable position. They may not feel that the decision to sign is truly voluntary, especially if you make clear that their continued employment depends upon the waiver. Moreover, they may become ineligible for unemployment insurance if they refuse to sign.

A major problem with this is that the waiver might not hold up in court. In Texas, our courts will generally enforce voluntary waivers of rights by employees, but it depends in part on whether the waiver is considered truly voluntary. Additionally, the court may not consider the waiver a valid contract unless the employee gets something out of it besides continued employment.

Finally, be aware that although a liability waiver might keep sick employees from suing you, they would still have the right to claim workers’ compensation if their illness is job-related.

When it comes to customers, there is less of an issue with voluntariness because the customer can always choose to go elsewhere. It is much more likely that courts would find the waiver truly voluntary and therefore enforce its terms.

In both cases, it is crucial to have the liability waiver drafted carefully to give it the best chance of being upheld in court.

Whatever you decide to do, be aware that COVID-19 lawsuits are already underway. According to the Associated Press, there are at least 2,741 lawsuits pending over COVID-19 infections. However, only 47 were filed by employees and seven by consumers.