Have you had to sign a Coronavirus waiver to go back to work, or to participate in an activity? Are you worried that your organization could be sued for someone’s positive test results?
We are seeing more and more of these waivers included throughout Florida as part of normal activity waivers. Recently, school boards have also started including them in employment packages as schools prepare to re-open in August. If you sign such a waiver, you are waiving your right to hold an organization or business responsible for your risk of contracting a communicable disease while on premises. You may be wondering if this is legal. Can you sue for positive Covid-19 results? Is it legal for an employer to require employees and patrons sign a Covid waiver?
Covid waivers and employer and employee rights
Florida is a right to work state; in this case, that means that an employer has a legal right to ask their employees to sign a Covid waiver if they wish to remain employed. Employees have a legal right to disagree and to leave their employer.
Business owners and allegations of Covid-19 transmission
I expect that state and possibly federal legislation will soon be passed that will provide immunity for business and employers for any allegation of Covid-19 transmission. Until then, my opinion is that if you are a business owner or employer, and even if you did not request your employees and/or guests sign a communicable disease wavier, there is very little risk of being found liable for someone’s positive Covid-19 results as long as you are following local and state safety guidelines.
Safety provisions and negligence during the ‘new normal’
However, if you willfully neglect safety measures you could have taken, your patrons and employees may prevail in litigation. Many front-line workers in restaurants and other high traffic businesses will be most at risk for transmission. It is not fair to compel them to work without providing for their safety. In the event that your business does not provide for their safety, it is unrealistic that a signed waiver holding your organization harmless will be worth much.
The coronavirus pandemic is new territory, but the general rules that apply to waivers and lawsuits will likely still apply. A waiver signs away someone’s right to sue in the event of injury in the normal circumstances of that activity. Waivers do not hold up when there is negligence involved. In consideration of the new normal (masks; social distancing of six feet or more; your local city or county guidelines; CDC recommended sanitization procedures), a business or organization that provides every ‘normal’ precaution possible will likely not be found negligent in the event of a lawsuit. (We’d hope that without the worry of a lawsuit, your business or organization is taking these measures out of concern for your workers and guests.)
Employees, patrons, and Covid-19 lawsuits
If you have been unfortunate enough to contract this awful disease, it is understandable that you are angry about it. We know that Covid-19 is not like a flu, and that some individuals will suffer long-lasting health problems and loss from being unable to work.
It is also virtually impossible to prove its transmission, as scientists are still trying to understand more about the specifics of airborne particle spread, surface contamination, and exposure risks. The incubation period is also currently estimated between 2-14 days, further complicating testing and contact tracing. Even if you could prove that you contracted Covid-19 at your employer’s workplace or at a specific restaurant, or other place of business, you would also have to prove negligence on their part for a chance of a successful lawsuit.