Use of COVID-19 Liability Waivers and Related Approaches
Some reports indicate that employees have filed almost 600 COVID-19-related lawsuits against their employers. As a result, about a dozen states, including Georgia, have passed laws attempting to provide some liability protection from COVID-19 liability. Georgia's law provides that an employer or other business entities may post a warning at its premises to protect itself from liability due to Coronavirus claims. The warning states as follows:
Warning: Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.
The theory behind the Georgia law is that a visitor would assume the risk of infection by entering the premises, and that posting the notice provides a rebuttable presumption of assumption of the risk. The advantage of the notice is lessened in the case of employers, however, because in most cases state workers' compensation laws would protect the employer from tort claims from employees, and even the employees of some independent contractors under the exclusive remedy provisions. On the other hand, visitors to employer premises as well to other establishments would not be subject to the workers' compensation pre-emption defense.
Some employers have considered going beyond the relief offered by the laws of some dozen states having COVID-19 protection laws, and asking not only visitors, but also independent contractors and possibly even employees, to sign COVID-19 liability waiver forms. Most commentators have urged companies not to require employees to sign such forms, because they may be deemed unduly harsh and may not be necessary due to the workers' compensation pre-emption defense. On the other hand, these circumstances may not apply to visitors or independent contractors. Since waivers as to employees can create negative employee relations and bad publicity to the employer, some employers are using employer-created questionnaires in which employees affirm their lack of exposure to COVID-19 and lack of symptoms.
Many may wonder whether such waivers are enforceable. In general, waivers are enforceable but are usually not effective to protect against gross negligence, recklessness or intentional acts. Courts often require waivers to be written in clear and unambiguous language, and some states limit advance waivers in particular situations.
In drafting waiver and release agreements for contractors or visitors, it may be helpful to mention the risks of contracting COVID-19 in entering a premises, with representation and/or warranty that the persons entering will follow guidelines issues by the CDC and comply with COVID-19 laws, and possibly that the person will not engage in contact with employees if they have a fever or any "COVID-19 symptoms, or recently have been in contact with another with the same." In all cases, however, employers must consider not to unduly discourage such persons from entering the premises if their presence is essential.