Workplace Liability in the time of COVID-19

Workplace Liability: COVID-19

Workplace liability is on the rise with employees returning back to the workplace during the COVID-19 pandemic. Due to the potential health risks associated with COVID-19, a few employers across the country are requiring employees to sign liability waivers. The enforceability of these liability waivers is currently being challenged in some parts of the country. For example, the California State Legislature passed a bill prohibiting employers from requiring employees or job applicants to sign away their right to pursue legal claims or benefits under state law. This law, which also prohibits firing any employee for refusing to sign the waiver, is currently being challenged in court by business groups.

While these liability waivers have gained attention across the country, few employers have actually implemented them. Many employers fear that these waivers would be struck down in court, due to the issue of enforceability. Courts have often struck down employment agreements where there is unequal bargaining power between the employer and employee.

These waivers may also be unenforceable due to issues with workers’ compensation. Workers who get sick or injured on the job are generally compensated through state workers’ compensation systems rather than through the court system. State laws prohibit employers from forcing employees to sign away their right to pursue workers’ compensation claims.

While many employers have been hesitant to implement liability waivers, this has not been the case amongst the sports industry. The rise of COVID-19 liability waivers across athletics has been a byproduct of sports returning while the pandemic is still ongoing. Cash-strapped high schools, colleges, and professional sports organizations have sought to protect themselves against potential coronavirus lawsuits. As a result, these organizations are only allowing athletes to participate in their sport if the athlete is willing to forfeit their legal rights.

An athlete attempting to sue their employer after contracting COVID-19 would likely have a tough time succeeding in court, with or without a waiver. The athlete may be able to prove the organization was negligent in failing to cancel an event or failing to abide by state or local guidelines. An employee would also need to prove causation which would be a tremendous hurdle. A liability waiver adds another obstacle for an athlete to overcome, however, as previously mentioned, the enforceability of these waivers remains relatively unknown.

While liability waivers may be a legal problem for both employees and athletes, another problem in the midst of the pandemic is legislation regarding employers. Senate Majority Leader Mitch McConnell has proposed a Senate bill with broad liability protection for employers for five years against a range of coronavirus-related claims. Majority Leader McConnell stated he would refuse to support any COVID-19 relief bills that did not include such protections.

At least ten (10) states have already enacted laws providing businesses some form of immunity from lawsuits brought by employees and others who contract COVID-19. According to John Abegg, Executive Vice President of the U.S. Institute of Legal Reform, federal legislation providing employers COVID-19 liability relief should be limited to protect only the employers who follow applicable health and safety guidelines. Even if liability protection legislation passes through Congress, it would not shield employers from all lawsuits, such as those claiming gross negligence or reckless or intentional conduct in failing to implement COVID-19 safety precautions.

Nearly fifty (50) COVID-19-related lawsuits have been filed relating to conditions of employment. These lawsuits have included exposure to the coronavirus and lack of protective equipment. In many states, workers that have alleged intentional misconduct after they and their families have been harmed by COVID-19 have been able to proceed with lawsuits through the court system rather than the workers’ compensation system. This allows workers to seek larger damage awards.

COVID-19 remains an ongoing issue and will likely continue to have legal implications for employees, athletes, and employers alike. Due to the lack of legal precedent, all parties will be forced to develop novel legal arguments in order to gain protection during this uncertain time.