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In late July 2020, Fortune reported on the story of Ana Aguilar, a preschool teacher at a Montessori school in Irvine, CA who was fired after she refused to sign a form agreeing not to sue the school if she caught COVID-19 or suffered any injury from it while working there.
Aguilar recounted how after preparing her classroom to reopen back in May, her employer informed her that though staff would be required to wear face masks, the students would not have to when they came back — hence the requirement to sign the liability waiver. Having a compromised immune system and also being worried that she could pass the coronavirus on to her fiancé and other family members, she refused to sign. A week later, she was fired.
As some people in California have started to head back to the workforce, Fortune reported that some employers are requiring employees to sign similar waivers. A liability waiver is an agreement in which a party gives up the right to sue another party for damages.
The lawyer representing Aguilar was quoted saying the agreements are illegal and “totally unfair to workers.”
Last year, the State Legislature passed AB-51, which prohibits California employers from requiring prospective and current employees to “waive any right, forum, or procedure” for a violation of the California Fair Employment and Housing Act (FEHA) or the California Labor Code.
These COVID liability waivers likely would be held unenforceable by courts because of the unequal bargaining power between employers and employees, lawyers who represent employers say.
The law, which also prohibits firing any employee for refusing to sign, is being challenged in court by business groups. Senate Majority Leader Mitch McConnell proposed a Senate bill with broad liability protection for employers for five years against a range of coronavirus-related claims. He has said he won’t back any COVID relief bill that doesn’t include such protections, and President Donald Trump has also expressed support for the liability protection.
In California, the Assembly is currently considering a liability protection bill for public K-12 schools.
Another reason for these not to be enforceable is that workers who get sick or injured on the job are generally compensated through worker’s compensation systems as opposed to courts. Moreover, state laws don’t allow employers to force employees to sign away their right to pursue workers’ comp claims.
Workers’ compensation claims cannot be waived, and it’s unlikely that a court would want to undermine the foundation of the workers’ compensation system to enforce a COVID-19 waiver. California has made COVID-19 temporarily compensable provided the employee satisfies certain conditions.
However, while employees may be exempted from signing these liability waivers, companies may have the right to require nonemployees working on their premises to sign them.
What some lawyers suggest is that employers have employees agree to comply with safety rules, which are more common and legally acceptable, instead of waivers.
If you were asked to sign a COVID liability waiver by your employer, you should consider consulting with an employment lawyer before signing any type of agreement that requires you to give up your right to sue.