A trend is developing that demands that employees sign waivers of liability, in favor of their employers, in the event they contract COVID-19 upon their return to work as the restrictions are lifted.

While few of them have surfaced in Minnesota, they are spreading like a virus across the country. In a handful of states, laws have been enacted or gubernatorial executive edicts issued immunizing employers from liability claims by coronavirus-infected workers, including Alabama, North Carolina, Oklahoma and Utah.

Meanwhile, legislation is pending in Congress, promoted by Republicans in the Senate, to require immunity for large sectors of the workplace, in exchange for joining Democratic-sponsored legislation in the House of Representatives, extending additional stimuli payments.

Waiver supporters insist that such immunization is necessary in order to reinvigorate the economy, while opponents caution against them for fear that they will expose employees to illnesses for which they cannot receive compensation.

Other observers point out that the insistence on those waivers may give out the wrong signal, particularly to customers and vendors, that measures are not being taken to safeguard the places they patronize.

Looming limitations

Setting aside the efficacy of those arrangements, the looming limitations of liability are of questionable legal validity.

At first blush, the waivers seem legally suspect because they are presented as unilateral take-it-or-leave-it arrangements that employees may view as coercive and are signed under duress. However, the courts generally uphold these kinds of devices, as long as employees have a choice, which they do, to either accept an employer's imposed terms or not work.

The Minnesota courts have long upheld prospective disclaimers of liability for incidents of negligence, but not gross impropriety or intentional wrongdoing by the propagator of the instrument and not for what are deemed "essential services," which generally do not extend to employment relationships. The state Legislature stepped into the fray in 2013, enacting a law that imposes limitations on disclaimers for consumers. The measure basically leaves the existing judicially crafted law intact, permitting disclaimers as long as they do not grant immunity to employers for actions beyond mere negligence or ordinary carelessness. The statute, however, only applies to consumers and not to others who may have engaged in relationships, such as employees, subcontractors, vendors, and the like.

Even if they are facially valid, the compelled waivers may not be legally enforceable. The rarely invoked legal doctrine of "public policy" could void them. Under that tenet, an arrangement, even if mutually agreed upon between parties, may be invalid if it is contrary to what is known as "well established public policy." In the case of back-to-work waivers, it could be argued, and possibly determined, that the devices are inimical to the public interest and, therefore, not enforceable.

Further, the arrangements may run afoul of the Minnesota workers' compensation laws. Similar to most states, the Minnesota measure provides that employers are liable, without regard to fault, for any injuries or afflictions incurred at work. The amounts, however, are quite meager. Although Minnesota at one time was one of the most hospitable states for workers' compensation benefits, for the last two decades, statutes have converted it to one of stingiest.

Proof problems

But liability is not automatic; proving that a virus was contracted at a workplace may be difficult. While the workers' compensation law surmounts that problem by imposing liability on an employer regardless of fault, there must be sufficient proof that the workplace was the cause of the affliction.

In exchange for the indulgence in imposing liability without regard to fault, the workers' compensation law deprives employees, in most instances, of their ability to sue employers for damages unless they can show that the employer acted in a way that constitutes "gross negligence," meaning beyond the ordinary type of carelessness, or intentional misconduct.

The workplace waivers also may be ineffectual for other reasons. Employees who contract the virus at work and can prove the relationship to the workplace may be barred from suing, or relegated to workers' compensation benefits. However, their family members or others who pick up the disease from them would not be subject to the waiver, and therefore could sue, subject to significant evidentiary problems proving the link to the workplace through the workers there.

The workplace immunity also would not limit possible claims by others who contract the disease, such as subcontractors, customers, vendors or others who are on the work premises but not employed there.

For these reasons, work waivers are of dubious enforceability and effectiveness. Far from these legal infirmities, they provide a signal to the community, particularly prospective customers, that the workplace is not safe.

Given these problems, both legal and pragmatic, employers may choose to refrain from requiring employees to waive their rights as a condition to return to work. They may figure, on balance, that the problems associated with the waiver trump the advantages of using them.

Marshall Tanick is a Twin Cities employment law attorney with the law firm of Meyer Njus Tanick.