Following extensive shut downs and closures due to the spread of COVID-19, many states and localities are starting to allow businesses to reopen. Re-opening generally means bringing employees back into the workplace. This has sparked a fear among employers about the potential for liability arising from employee(s) contracting COVID-19 at the workplace, whether from fellow employees or from interactions with the public. This fear has led to the increased popularity of COVID-19 liability waivers. Employers, with the advice of counsel, should give significant consideration to whether these liability waivers will actually offer protection, and whether requiring employees to sign a waiver will violate state or federal law.

COVID-19 liability waivers attempt to prevent liability arising from employees who may contract the virus

The goal of COVID-19 liability waivers is to limit the employer’s liability in the event an employee contracts the virus at the workplace. The exact terms of these waivers vary, but there are many commonalities. Generally, the waiver may include an obligation that the employee notifies the employer in the event the employee is exposed to COVID-19 or exhibits symptoms of the virus. The waiver generally attempts to waive an employee’s right to sue the employer if the employee tests positive for the virus, presumably preventing claims for medical care or loss of income.

Enforceability of waivers is largely based on state law but may invoke some federal laws, such as ADA and OSHA safety requirements

The enforceability of employee liability waivers is determined based on state law. Therefore, when an employer invokes the protections allegedly granted by a waiver, each state may yield a different result depending on local law and the language of the waiver. Some states prohibit employee liability waivers based on the superior bargaining power of the employer. In some states, workers’ compensation laws may prohibit the waiver of an employee’s right to claim workers’ compensation. This article largely focuses on the enforceability of liability waivers in Texas. Best practice is to speak with a local attorney before implementing employee liability waivers.

COVID-19 liability waivers may also invoke certain federal laws. The Americans with Disabilities Act (ADA) prohibits certain discriminatory actions, such as singling out individuals with disabilities to sign liability waivers or waiving rights to accommodations which could be given without undue hardship on the employer. The Occupational Safety and Health Administration (OSHA) regulates workplace safety. COVID-19 liability waivers cannot waive a worker’s right to file a safety and health compliant with OSHA. You can visit OSHA’s website to learn more about COVID-19 safety standards.

SUBSCRIBERS TO WORKERS’ COMPENSATION

In Texas, workers’ compensation subscribers cannot require an employee to waive his or her rights to file a workers’ compensation claim

Texas allows employers to opt-in or opt-out of workers’ compensation coverage. Employers who opt-in (“subscribers”) receive certain protections, such as a limitation on liability and immunity from suit, except in certain cases such as gross negligence. Employers who opt-out (“non-subscribers”) are exposed to personal injury lawsuits from employees. When a lawsuit is filed, non-subscribers are prohibited from raising certain defenses, such as contributory negligence (defending against the claim by showing that the employee’s own negligence caused the injury), negligence of other employees, or assumption of risk. For these reasons, many employers elect to subscribe to workers’ compensation.

Subscribers in Texas must give employees an option to opt-out of workers’ compensation coverage at the time the employee is hired. If an employee opts-out of workers’ compensation coverage, the employee retains his or her right to sue an employer if the employee is injured at work. An employer cannot require employees to waive this right. Additionally, agreements to waive a covered employee’s right to receive compensation are void.

Therefore, because covered employees cannot be required to waive their right to receive workers’ compensation and a subscriber employer cannot require a new employee to waive their right to elect workers’ compensation coverage, COVID-19 liability waivers will likely offer little to no benefit to subscribers.

Workers’ compensation provides coverage for occupational diseases, but not ordinary diseases of life

Whether an employee who has contracted COVID-19 is eligible for workers’ compensation benefits will be determined on a case-by-case basis. To be eligible for benefits under workers’ compensation, a disease must be an “occupational disease” and not an “ordinary disease of life.” An occupational disease is “any disease arising out of and in the course of employment which causes damage or harm to the physical structure of the body.” An ordinary disease of life, on the other hand, is a disease “to which the general public is exposed outside of employment.” (Texas Labor Code § 401.011(34))

Whether COVID-19 is considered an occupational disease or an ordinary disease of life will depend on the circumstances of each workplace and case. First, there must be a causal link between the workplace and the injury. In other words, did the employee contract the virus during the scope of his or her employment? Certain facts, such as documented COVID-19 cases among fellow coworkers, may support a causal link. However, with the contagious nature of COVID-19, this may be difficult to determine if the employee had multiple exposures in and out of the workplace or if no other cases have been documented at the workplace or with customers.

Second, the employee must be at an increased risk of exposure to COVID-19 in the workplace than in the general public. Certain businesses which require more interaction with the public or the afflicted, such as healthcare jobs, or jobs at restaurants and retail outlets, may have an increased risk of exposure.

NON-SUBSCRIBERS TO WORKERS’ COMPENSATION

In Texas, agreements to waive liability before an employee’s injury or death are unenforceable

An employer may be outside of the protections of the workers’ compensation liability limitations and coverage if (1) the employer is a non-subscriber, (2) the employee waived his or her rights to workers’ compensation coverage during the allowable period, or (3) in an exempted case, such as a case of gross negligence.

Under the Texas Labor Code, agreements to waive an employee’s right to sue an employer before an injury occurs are unenforceable. Therefore, if an employee waives his or her right to sue an employer for injuries arising out of contracting COVID-19, the waiver will be void and the employee will retain the right to sue. Additionally, Texas prohibits non-subscribers from raising the defense of assumption of risk. Therefore, an employer is barred from arguing that an employee assumed the known risk of exposure by voluntarily returning to work.

To succeed in a lawsuit, an employee must show that the employer was negligent and that the employee more likely than not contracted the virus in the scope of employment

As with claims filed with workers’ compensation, employees must show that the employee likely contracted the virus while in the scope of his or her employment. The standard of proof for this claim requires firstly that the employee show that more likely than not, he or she contracted the virus at work. Evidence such as documented cases within the workplace and the potential exposures to the employee outside of the workplace may be used to support or refute this claim.

Secondly, the employee must show that he or she contracted the virus because of the employer’s negligence. In other words, the employer must have failed to fulfill its duty to use reasonable care to protect its employees from exposure.

MINIMIZING RISKS

While a liability waiver may not be the best method of protecting your business, employers can mitigate their risk of liability through implementing measures to protect employees from the virus. Appropriate and reasonable measures can be found through the guidelines issued by the Centers for Disease Control and Prevention (CDC) and by OSHA. These guidelines include enforcing social distancing where possible and wearing personal protective equipment.

If you have any questions about how to protect your business from liability or you are facing a claim and need assistance, please don’t hesitate to contact Erica Mahoney at erica.mahoney@mrkpc.com.