DON'S DISCUSSION
DON'S DISCUSSION IA&B Legal & Corporate Affairs Director Don Bankus
Are you a member with a question? Contact Don to find the answer at 800-998-9644, ext. 603 or DonB@IABforME.com.
QUESTION: If my employees sign a waiver, does that eliminate my agency’s COVID-19 liability? ANSWER: As businesses, including independent insurance agencies, bring staff back into their offices, the concept of asking employees to sign a COVID-19 liability waiver is becoming more common.
WHAT IS A LIABILITY WAIVER?
FINAL THOUGHTS
When we conjure up the concept of a liability waiver, we typically think of a pre-event liability waiver. This is an agreement between parties where the participant is advised beforehand of inherent, and usually obvious, risk associated with participating in an activity. The participant acknowledges the risks (e.g. attending a baseball game, while acknowledging the risk of being hit by an errant baseball) and waives his or her right to sue the host for injuries and damages sustained as a result of said willing participation. In the case of the employer/employee relationship, the employer would be the host and the employee the participant.
While waivers may not be the answer, policies and procedures outlining COVID-19 waivers and relating to remote work can assist in the creation of understanding and continuity in the “workplace.” To that end, our HR consultant, Mosteller & Associates, has developed a remote worker agreement and related tools, available to members for a nominal fee. Visit IABforME.com/remote_work or call 800-998-9644, option 4 to learn more.
As your staff returns to the physical office (and the regular flu season couples with the pandemic), you may entertain requesting or requiring employees to sign a liability waiver. Such a waiver may include an acknowledgement and/or waiver language for employees to sign wherein they state they are not exhibiting COVID-19 symptoms, have not tested positive for the virus or been in contact with anyone who has, will seek immediate treatment and notify their employer if they begin to exhibit symptoms, and will not hold their employer liable if they contract COVID-19 at the office. While it would be beneficial for an agency to have written policies and procedures in place outlining applicable COVID-19 protocols, liability waivers between employers and employees are likely not enforceable, primarily due to public policy considerations. And to date, the jury is still out on COVID-19 waivers since they have not been tested in the courts. In addition to the above, requesting employees to sign a COVID-19 waiver could have unintended consequences, such as encouraging employees to refrain from returning to work (good help is hard to find). A more positive approach would be to focus on highlighting the measures the agency has taken to ensure the safety and well-being of its employees.
This document is not a legal opinion and should not be relied upon as such. The intent of this document is to provide a general background regarding the topic or topics discussed, not to provide legal advice. Producers and agencies should consult an attorney regarding specific situations and specific questions with respect to the topic or topics covered in this document. Neither the Insurance Agents & Brokers nor any of its employees shall be responsible for any errors or omissions regarding any statements made in this document, nor any errors or omissions regarding any statutes, regulations, court rules, and/or any other government documents cited in this document.
IA&B Members: Shopping your policies? IA&B Service Group can help protect your assets. We provide: ▲ Errors & Omissions ▲ Cyber Liability ▲ Umbrella ▲ Employment Practices Liability 800-998-9644, option 3 IABforME.com/agency_insurance
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