Legal Focus: Travel Waivers for Employees

As the pandemic continues, some employers have asked employees to sign waivers releasing future legal claims associated with them becoming infected with COVID-19 or other illness during company travel. Why is this happening, and is such a waiver enforceable?

In general, an employee’s exclusive remedy for work-related illness stems from the state’s workers compensation laws, which provide medical expenses, lost wages and rehabilitation costs for employees injured in the course and scope of their employment.

In general, an employee’s exclusive remedy for work-related illness stems from the state’s workers compensation laws, which provide medical expenses, lost wages and rehabilitation costs for employees injured in the course and scope of their employment.

COVID-19 has led to questions about what exactly constitutes an “injury” or “occupational disease” in workers compensation claims. In many states, workers compensation coverage does not include “ordinary diseases of life.” While employers should review work comp laws in their states, an “ordinary disease of life” is commonly defined as an illness to which the public is equally exposed, thus it is not unique to the nature of an employee’s job. Consequently, many states have moved quickly to try to clarify and/or expand workers compensation to afford protection if employees become infected.

COVID-19 has led to questions about what exactly constitutes an “injury” or “occupational disease” in workers compensation claims. In many states, workers compensation coverage does not include “ordinary diseases of life.” While employers should review work comp laws in their states, an “ordinary disease of life” is commonly defined as an illness to which the public is equally exposed, thus it is not unique to the nature of an employee’s job. Consequently, many states have moved quickly to try to clarify and/or expand workers compensation to afford protection if employees become infected.

Some states, like California, have gone as far as creating a rebuttable presumption that workers who contract COVID-19 are presumed to have a workplace injury that is covered. However, in states where COVID-19 is not covered by workers compensation, the exclusive remedy provision does not apply, and employees may be more likely to sue their employers.

As a result, employers may consider trying to limit their exposure to liability by having employees sign waivers releasing claims that the company did something negligent that caused infection.

Some states prohibit waivers. In other states, however, it has not yet been tested if such waivers might be enforceable, which leaves some employers wondering whether they should ask employees to sign one, particularly in situations where the employee is traveling by car or plane and therefore outside of the office space where the employer has implemented its safety protocols and can manage compliance.

Imagine, for example, a situation where someone flies from New York to Iowa for a masked and socially distanced business meeting, then after returning, finds out he or she has contracted COVID-19.

If the employee had signed a waiver, would that provide protection for the employer in a state where workers compensation laws don’t cover COVID-19? What if the employee had gone to an indoor bar or crowded public space with no mask after the business meeting ended?

The answer is maybe, but there are other important considerations to balance.

First, enforceability of this type of waiver will be questioned because of the unequal bargaining power between the employer and the employee.

Second, in states that enforce liability waivers, they typically are limited to negligence and will not be enforced to the extent they purport to waive liability for conduct that rises above ordinary negligence.

Third, a waiver cannot protect employers from OSHA complaints or enforcement actions when a workplace is dangerous, even in light of recent regulation making exceptions for employees who attempt in good-faith to follow agency regulations during the pandemic.

And fourth, the use of a waiver cannot replace the need for the employer to maintain a safe workplace and to comply with evolving laws, guidance and regulations at the state and local level, as well as from the CDC, OSHA and the EEOC.

Businesses also should consider the optics of asking employees to sign waivers. They risk discouraging employees from continuing to return to work, creating the appearance the business is looking out for its own interests more than its employees, poor morale, and even potential publicity concerns.

Companies will want to weigh these potential risks against the possible protections that a travel waiver will provide in the event an employee contracts COVID-19 or other illness.

Christy Mennan and DJ Warden are shareholders at Nilan Johnson Lewis. They specialize in product liability/mass tort. Warden also specializes in business litigation.