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Employers Wary of Virus Liability Waivers, New Survey Finds

Law360

Although employers have expressed a keen interest in using waivers to try to limit their liability in the event a worker, customer or visitor contracts COVID-19 on-site, very few are pulling the trigger, according to a new survey from Blank Rome LLP.

After surveying roughly 150 employer clients on their pandemic tactics in July, the firm found that only 8% mandate waivers for employees, 6% require them from customers or clients, and even fewer get workplace visitors to sign them.

Brooke Iley, co-chair of Blank Rome's labor and employment practice, said she was surprised by the results, as she told Law360 there's been an "absolute laser-like focus" on liability waivers and it's "the primary thing we're talking about."

While a liability shield appeals to businesses navigating uncharted waters amid the pandemic, Iley said employers are finding that the negatives outweigh the potential benefits.

For employees, they're largely unenforceable. Under the Occupational Safety and Health Act's general duty clause, employers must provide a safe workplace that is free from serious recognized hazards, and someone can't contract away that right, Iley said.

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Waivers inked by customers, clients or vendors will likely fare better in the courts, but their usefulness is still a big question mark, according to Susan Bickley, a labor and employment partner who heads up Blank Rome's office in Houston.

"They are weighing the message that it sends to their client, customer or vendor against any perceived benefit, and acknowledging that we don't know," Bickley said. "We're in a legal landscape in which we don't know if such waivers will ultimately be enforceable."

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“Employers Wary of Virus Liability Waivers, New Survey Finds,” by Anne Cullen was published in Law360 on July 30, 2020. 

COVID-19 Employer Workplace Survey

Download Blank Rome's Survey Results