Waivers When Employees Return to Work

Many employers across the country are preparing to welcome employees back to work with new safety precautions or procedures to assist in protecting their workforce from COVID-19. Despite the new safety measures, an employee may still claim he or she has been exposed to COVID-19 in the workplace.

Many employers have asked whether they can require that an employee waive future claims of COVID-19 exposure before they return to work—i.e., sign a statement that the employee knows the risk of returning to the workplace, assumes that risk and waives any claims against the employer. Some of these requests relate specifically to individuals who are in a vulnerable category who are returning to the workplace.

Employers may not require that an employee (whether in a vulnerable category or otherwise) waive his or her right to raise a worker’s compensation claim as a condition of returning to work. Requesting employee waivers is prohibited by statute and undercuts the legal compromise that is the basis for the worker’s compensation system, which is that, except in very rare circumstances, worker’s compensation is the exclusive remedy for an employee who has a work-related illness or injury. In other words, as a general rule, employees cannot sue their employers for illnesses or injuries they contract or sustain at work.

This does not mean that employers cannot require waivers from employees for things like the use of fitness equipment or other similar opportunities provided by the employer that are not directly related to work. While the enforceability of such waivers varies from state to state, injuries that occur during the use of such facilities is generally not covered by worker’s compensation.

If you have questions, please contact Ann H. Stewart or any other member of our Labor, Employment & Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.