An increasing number of businesses in New Jersey and Pennsylvania have reopened. As the number of new coronavirus cases has started to level off, people have started to hope that normal life might soon return both in public and at work. However, you might face new challenges as you return to work. It is important for you to understand your rights at work during the pandemic. Here is some information from the attorneys at Swartz Swidler about working during the pandemic and COVID-19 waivers.
Workplace rights for employees
Many companies are concerned that they might be sued if workers contract COVID-19 in the workplace. Some employers have asked returning employees to sign COVID-19 waivers of liability when they come back to work.
While you might be concerned about signing a liability waiver to return to work, it is not clear that these types of agreements will be enforceable. There are several legal obstacles that could render COVID-19 waivers invalid.
Understanding liability waivers
When you sign a liability waiver, you agree to give up your right to file a lawsuit against another party for damages. A common example of when you might be asked to sign a liability waiver is when you join a health club and sign a waiver agreeing not to sue for any injuries that you might suffer when using the facilities and equipment.
The enforceability of liability waivers turns on the contract laws of each state. Regardless of where you live, however, a liability waiver must be unambiguous, clear, and limited to negligence. A waiver that is written to absolve a party from being sued for intentional or reckless conduct is not enforceable.
Workers’ compensation and liability waivers
A liability waiver cannot be used to waive your rights to file a claim for workers’ compensation benefits if you contract COVID-19 at work. Workers’ compensation is designed to serve the interests of the employer and the employee. It is meant to protect employees who contract occupational illnesses or who are injured at work by allowing them to recover benefits to pay for their medical expenses, a percentage of their lost wages, and their rehabilitation costs without having to prove that their employers were negligent. Employers are also protected by the workers’ compensation system because they cannot be sued by employees for personal injuries. If your employer asks you to sign a liability waiver that purports to waive your rights to workers’ compensation benefits, it is unlikely that a court would enforce it.
Multiple states have indicated that they want COVID-19 to be considered an occupational illness that is compensable through the workers’ compensation system. As long as you can present evidence that you likely contracted the virus at work, you should be able to recover workers’ compensation benefits.
Workplace safety rules
Employers are required under the Occupational Safety and Health Act to keep their workplaces free of known hazards and to maintain workplace safety. Guidelines have been issued by several state and federal agencies about how employers should address COVID-19 at work. Guidelines have also been published by the federal government about how businesses should reopen during the pandemic.
If a court was to enforce a COVID-19 liability waiver, it could be argued that its enforcement allows an employer to avoid its obligation to keep the workplace in a safe condition and instead would force employees to assume the risk of working in an environment that is not safe. It is unlikely that most courts would enforce COVID-19 liability waivers on this basis.
Public policy concerns
There are also public policy concerns that could way against the enforcement of COVID-19 liability waivers. Some states are reluctant to enforce workplace liability waivers because of the unequal bargaining power between employers and employees. Since COVID-19 is highly contagious and potentially deadly, it would be difficult to imagine that courts would treat COVID-19 liability waivers differently.
Practical issues with requiring COVID-19 liability waivers
There are several practical issues that might make employers hesitate to use COVID-19 liability waivers. Asking returning employees to sign waivers of their potential rights could cause employee morale to drop since the employer would be perceived as prioritizing its economic interests over the safety of its workers.
Liability waivers also would not prevent your family members from suing your employer if they contract COVID-19 after you were infected at work. Some states have also passed laws giving employers immunity against claims filed by employees who have contracted the virus at work, rendering COVID-19 liability waivers unnecessary in those jurisdictions.
Recovering damages from your employer after you contract COVID-19 at work will likely be difficult even if you are not asked to sign a COVID-19 liability waiver. You would have to prove that you contracted the virus from your workplace rather than somewhere else. Since the virus is very contagious, it is possible that your employer could do all of the right things and still be unable to protect all of its employees.
Get help from the experienced attorneys at Swartz Swidler
If your employer asks you to sign a COVID-19 liability waiver, it will be unlikely to protect your employer if you contract the disease at your job. However, it is a good idea for you to consult with an employment lawyer before you sign any type of liability waiver at your job. An experienced attorney can explain whether these types of waivers are enforceable in your state and whether you should agree to sign. Call Swartz Swidler today to schedule a free consultation at (856) 685-7420.