When Should COVID-19 Waivers, Acknowledgments and Notices Be Used?

Allen Smith, J.D. By Allen Smith, J.D. July 17, 2020
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​Employers may need to limit their use of COVID-19 liability waivers with employees, as the waivers may not be enforceable. Experts also question whether employers should use employee acknowledgments for coronavirus-related health screenings, but employer written notices about screenings may be prudent.

"Waivers are popular right now," said Katherine Dudley Helms, an attorney with Ogletree Deakins in Columbia, S.C. "Many attorneys question how enforceable they will be. I know I have chuckled at a few I have signed. I just think that right now we are still in a huge gray area."

Waivers for employees are enforceable only in limited situations, said Benjamin Ross, an attorney with Fisher Phillips in Denver. Courts often rule that the unequal bargaining power between employers and employees makes waivers unenforceable. Waivers cannot protect from gross negligence or willful conduct, he added. Nor can they supersede workers' compensation statutes. They also cannot stop Occupational Safety and Health Administration complaints or investigations, he noted.

But "in some situations, they may protect employers from negligence claims," he said.

While some employers that use waivers think being safe is better than being sorry, "practically speaking, waivers may discourage employees from returning to work and hinder restarting operations as a result," Ross stated. "They may also result in negative reactions and publicity concerns."

Some companies are using waivers when they are not requiring employees to return to the workplace but the employees choose to go back anyway, said Michael DeLarco, an attorney with Hogan Lovells in New York City. In these circumstances, "waivers of liability may have some value in defending against a liability claim that isn't covered by workers' compensation, though it is unclear whether such waivers would be enforceable in certain jurisdictions," he said. "There may also be employee morale considerations."

Andrew Rosenman, an attorney with Mayer Brown in Chicago, noted, "Some states do not enforce prospective liability waivers, except in limited circumstances, and other states strictly construe a waiver against the party seeking to enforce it."

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Coronavirus and COVID-19

Customer Waivers

Some businesses are considering COVID-19 waivers for both customers and employees. "An employer's request for a waiver of liability from a customer may adversely affect the employer's business relationship with that customer," Rosenman cautioned.

Helms asked, "Is it not more effective to require people who enter your business to wear face coverings and practice social distancing? Is it not equally effective to have a sign at the entrance that says that you have taken measures to provide a clean environment and are asking your customers to do so as well, but that you cannot ensure that they will not contract COVID-19?"

Helms added that even a questionably enforceable waiver might help prevent the spread of infection, as well as lawsuits.

[Need help with legal questions? Check out the new SHRM LegalNetwork.]

Acknowledgments

Employers should ask employees to sign acknowledgments that they understand and will comply with the employers' detailed return-to-worksite procedures, DeLarco said. These procedures might include temperature screenings and verbal or written questionnaires about symptoms, he noted.

Employees should understand that if they decline to have their temperature screened or answer questions about their symptoms, they may be denied entry into the workplace, he said. "If the employer is using a medical professional to issue its screenings, they may need to get a HIPAA [Health Insurance Portability and Accountability Act]-compliant release and authorization from the employees to permit the medical professional to release the information to the employer," he added.

The acknowledgment should note that an employee who has a temperature of 100.4 degrees Fahrenheit or greater will not be allowed to enter the office. In addition, it should note that if an employee has symptoms or tests positive for COVID-19 and has recently been in the office, he or she must alert a company representative, DeLarco said. The company representative then can confidentially inform others who may have been in contact with the infected employee.

If the employer sends employees to a third-party testing site for COVID-19 virus testing, it makes sense for the company to obtain written consent in compliance with HIPAA, he added.

Ruth Zadikany, an attorney with Mayer Brown in Los Angeles, said, "There appears to be little downside for employers to obtain written consent from employees in connection with their participation in COVID-19-related screenings, if possible."

But James W. Boyan III, an attorney with Pashman Stein Walder Hayden in Hackensack, N.J., said that written consent is not required for virus testing. "I don't think that it is necessary to have employees sign a consent form unless consent is required under state or local law," he said.

Helms at Ogletree Deakins added, "I see temperature takings more as a condition of employment and employers stating that a person with a temperature of 100.4—or whatever is acceptable in the jurisdiction—is a basis for which any person may not enter." She continued, "I'm not sure what could be disclaimed. If an employee questions the accuracy, the employer can take the temperature again and/or use a different thermometer."

She viewed getting consent to answer COVID-19-related questions prior to entering the workplace similarly. "If the employee does not wish to answer, he or she does not have to go into or onto the worksite," she said. "That is a personal choice, but the employer has the right to ask certain questions to try to increase the safety of its employees."

Written Notice

Zadikany recommended employers provide written notice of the safety protocols implemented during the pandemic. She said that as part of that disclosure, an employer should inform employees that measures being implemented—such as temperature screenings, COVID-19 virus tests and health questionnaires—are not diagnostic.

She also said the employer should clarify that it does not guarantee that all individuals in the workplace are free from COVID-19 and makes no representation regarding the accuracy of any test results.

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