When employers plan to return their employees to the workplace during the autumn, issues of liability and liability lead some to require employees to sign exemptions or confirmations regarding COVID-19. But experts question whether these documents may be necessary, advisable or even enforceable.
Companies are "absolutely" concerned about the issue of liability for workers who come down with COVID-19 after returning to the workplace, says Matt Zender, Las Vegas-based Vice President of Employee Remuneration Strategy at AmTrust Financial Services Inc.
"I believes that the reason people are worried about it is that it is not always 100% clear if you have taken all the steps you may need to take (to protect workers from COVID-1
The pandemic has raised significant liability issues, with bills proposed at the federal level seeking to limit employers' liability for workers who become ill during a pandemic, and some states adopting legislation to make it easier for employees who are allegedly contracted COVID-19 at work to receive workers' compensation.
Many companies ask for their legal advice on exceptions, but "you can not waive certain rights that an employee may have," such as employee compensation or the ability to file a complaint with the U.S. Occupational Safety and Health Administration, says Michael Weber, a shareholder in New York Office of Littler Mendelson PC
"If the employer does nothing to ensure safety, it will be responsible – there may even be gross negligence outside of work skills," said David Sherwyn, Itasca, New York-based law professor at Cornell. Univ ersity School of Hotel Administration. "Do you really need to say & # 39; You can not sue me & # 39 ;, or do you really just need to let people know that this is dangerous and we will do everything to protect you?"  Instead of an exception, Mr. Sherwyn proposes that workers sign a recognition – a form of social contract that recognizes that "both sides have obligations and we will to ask you to follow. ”
For example, the acknowledgment may state that the employer will follow US Center 's guidelines for disease control and prevention and take all necessary precautions to prevent the spread of COVID-19 at work, but also ask employees to follow the instructions wearing masks, social distancing and not coming to work if they have symptoms or think they were exposed to someone with COVID-19, he said.
"If done properly, (these acknowledgments) can help shape the story "Employees who try to think of this as a way to protect themselves from being sued lack the point. It is a way to protect employees from being exposed to the extent they can control," said Zender.
However, there is a strong incentive for employers to want to limit their liability. At Littler, Mr. Weber said the company monitors about 400 COVID-19-related lawsuits in a b. the right spectrum of industries that have been cited in the last 60 days by employees who claim everything from discrimination and negligence to inadequate workplace protection to constructive discharge to refuse to return to the workplace.
"Not to minimize concerns, but we are on the phone every day with our customers providing appropriate guidance, and we are comfortable with that advice," he said. "The challenge is when (workers) simply refuse to return to work."
While employees who refuse to sign an exemption from their corporate responsibility may have reason to challenge their employer, those who refuse to sign a new office protocol can be based on federal and state guidelines to protect others and themselves from COVID. 19 can rightly be removed from the workplace, says Susan Bickley, president of the Houston office of Blank Rome LLP.
"If there is an acknowledgment of, & # 39; Here are the protocols we have in place, please sign with respect to the fact that you have seen the information and agree to follow," and you have someone confirming that they will not accept them – I think there is reason not to let them into your workplace, she said.
These confirmations are also useful when workers want to return to the office or resume business trips but are not required as part of their job, says Susan Gross Sholinsky, New York-based member of Epstein Becker Green PC
"The purpose of this is "really to show that the employer … takes as many precautions as they can to ensure that employees follow the protocols if they enter the office," she said. "It really avoids the argument that someone was allowed to come to the office unnecessarily."
In a survey of 150 executives in July by Blank Rome, about 8% said they would order employees to sign exemptions before returning to
"I think most employers, as the survey suggests, have come until it honestly just sends the wrong message to its employees, "Bickley said. “I think it introduces an opposite component in the employment relationship. Especially right now, you have to question if it's a wise idea. ”
More insurance and labor news about the coronavirus crisis here .